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2018-110-Minutes for Meeting February 28,2018 Recorded 3/22/2018
Recorded in Deschutes County CJ2018-110 Nancy Blankenship, County Clerk Commissioners' Journal 03/22/2018 4:26:30 PM ::.. I II I II II VIII III 2018-110 i FUI FAC\.VIU111S.JLa111N v.ny Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room Wednesday, February 28, 2018 Present were Commissioners Tammy Baney, Anthony DeBone and Phil Henderson. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Assistant. Several citizens and representatives of the media were in attendance. CALL TO ORDER: Chair DeBone opened the meeting at 1:33 p.m. ACTION ITEMS 1. 9-1-1 Radio Project/Harris Corporation Representative of Harris Corporation were present for the discussion. This portion of the meeting was audio recorded. Introductions were made including the 9-1-1 User Board Staff present in the room. Mr. Reinke reviewed the history of the law enforcement radio system in the County including the failing condition of the previous analog radio system. Early testing last year showed that the new P25 digital system would work; 9-1-1 then went live with the new system in July 2017. Mr. Reinke reviewed the concerns with performance since that time (inventoried on trouble tickets). Commissioner Baney inquired if we had experienced trouble tickets with the last system. Tim Beuschlein, 9-1-1 Public Safety Systems Specialist noted there Minutes of Board of Commissioners' Work Session February 28, 2018 Page 1 of 8 were trouble tickets toward the end with the failing system. Commissioner Henderson inquired on the timelines of solving the deficits/concerns. It was noted by Harris that many of the portable units have been updated; identified updates and patches for non -Harris portable units have been identified by Harris and are awaiting implementation by Motorola representatives. Harris suggests having its on-site support team remain in place for at least 30 additional days. The recommendations for the non -Harris portable radios will be considered next week with the Motorola engineer support team. Commissioner Henderson inquired if training the users is different with digital verses analog. Training seems to be an issue and Harris explains the pieces they are trying to address. Review and assessment will be undertaken in context with ongoing technical issues. There is a preventative maintenance contract with the radio system and Harris is committed to make sure that the system operates to specifications. Commissioner Baney inquired on the tower situation and how that interacts with the 30 -day period of time and the strength of the system. Harris will look at the schedule impact of that process. Commissioner Baney noted the new tower will then add capacity to the system and shouldn't we expect to add more testing to the system. Harris states there is additional capacity but should not add additional issues. County Administrator Anderson notes there are two 30 -day periods, one for the Harris system and one for the Motorola system. In terms of managing this period, there should be a larger degree of communications as part of the weekly user group meetings. Chief Porter joined the conversation and noted his concern on the comment on the Motorola equipment as he has been using Motorola products for many years. Chief Porter referenced "the same exact situation that occurred in Texas" with a Harris system and wants Harris to be cautious and not blame Motorola. Commissioner DeBone spoke on the public safety standard that should be mature in the Harris product at this point. The Harris system was built and designed as a mobile system (different that portable) but didn't focus on the in -building and portable systems. Commissioner Henderson expressed his concern that he has never heard that before in all of the meetings he has been in. The various types of coverage were reviewed. The original system design is a mix of Deschutes County and State sites and designed for mobile coverage. The original design for the City of Bend was based on a concept of maps of coverage with buildings of certain amount of signal. Harris provided maps for different levels of buildings and the expected coverage within the city. The only way to provide full service in certain buildings is to have a specific in -building system. Coverage sites will be better with seven towers. Commissioner Baney explained the critical needs of our first responders and wants at the end of the day to have confidence in the radio system. She asked what does success look like to Harris? The response: when Deschutes County is happy then Harris will feel like they have success. Commissioner DeBone asked on the difference of the cultural change from analog to digital for multiple public safety agencies. Harris explained the officers need to speak directly into the microphone as it is a different system and more training is warranted. Commissioner DeBone commented this feels to be a step backward. Commissioner Henderson inquired on the amount and level of training that should have been done already. Chief Porter noted no amount of training of speaking into the microphone will help the officers when the call itself can't be transmitted to them clearly. Commissioner Henderson inquired if more training should be provided. It is part of their to-do task spreadsheet each week and once the system is at a stable point then the training will be set up. Commissioner Henderson expressed his opinion that the Minutes of Board of Commissioners' Work Session February 28, 2018 Page 2 of 8 training should have been done already. Mr. Beuschlein stated it is hard to train an officer when the radio is not operating properly. Discussion held on the additional tower site. Commissioner Henderson noted the discussions of adding a temporary site in the Bend area and one in the Redmond area. He wonders if Harris is advising this be done. The biggest coverage issue is in Bend due to terrain and a temporary tower in the Bend area is the critical effort. Harris feels there is a voice quality issue that some people find and some do not. The new digital radio systems do not give the user any indication they are running out of range. In the old analog system the radio would indicate the loss of signal coverage area. Harris commented it is challenging to balance the system in these mountainous areas. Commissioner Henderson inquired on the Redmond site and would we have to go back to coordinate that with Harris. A temporary tower site is confirmed for Overturf. ODOT has two trailers designed to be temporary sites and they will grant one to us. Commissioner Baney inquired how long it takes for authorization for that site. 9-1-1 staff suggested at least 30 days to obtain the necessary approvals from the FCC. Commissioner DeBone asked if we have a stable system today for public safety users. Harris said the system is stable and has one more update scheduled for tomorrow. Commissioner Henderson inquired on the system configurations and feels like there has been a disconnect. Harris stated there was a unique feature where the radios hand off between towers. Chief Porter suggests we should have known more a year ago but now we have a clear path to move forward. Chief Tarbett noted that the radio system is operating fine in Redmond, save a few issues within the Redmond Police Department building. A status update will be provided at a Work Session discussion in 45 days. OTHER ITEM: Chair DeBone commented on another topic based on this morning's meetings, to wit, the need for designated timelines at land use public hearings from this point forward. 2. COIC Presentation on Local Food Katrina Van Dis, COIC Program Administrator presented an agricultural economic impact report and provided information on the recent economic impact study on agriculture and local food producers in Central Oregon in the tri -county area. A joint project was completed with OSU Extension, High Desert Food and Farm Alliance, and Center for Small Farms and Community Food Systems to understand the investment potential for this sector. They reached out to 83 farmers and 28 responded. The respondents provided statistics on jobs, produce, and livestock. The benefit of the study is to find out how we can best support our farmers. Ms. Van Dis will be writing a journal article to highlight this case study. Minutes of Board of Commissioners' Work Session February 28, 2018 Page 3 of 8 Commissioner Baney asked when working with the tri county area we may not have as many farming opportunity as Crook and Jefferson Counties and inquired if Deschutes County's new crop (marijuana) was included. Ms. Van Dis stated it is not and noted a concern that this particular crop (M1) may impact lands used for food product farming. Ms. Van Dis provided a short survey for the Board and others in the room. 3. Appeals: Board Consideration Whether to Hear Six Appeals of the KCDG/Tanger Development Anthony Raguine, Community Development Department and Adam Smith, Assistant Legal Counsel presented this item for consideration. Mr. Raguine submitted an aerial photo of the subject property and reviewed the history of the proposed development. There are six appeals of the hearing's officer decision. There are three appeals for project one. For project two there were three more appeals. The applicant has agreed to toll the clock. A request has been submitted for the Board to consider splitting the appeal fee between all appealing parties which would be $21,000 split three ways. The applicant is requesting de novo review and on the record review. Discussion held on whether the Board should hear the appeal. Commissioner Baney stated it is not often where both parties are requesting the Board to hear an appeal and feels we have the responsibility to hear this. Commissioner DeBone asked for clarification on splitting the appeal fee and expressed opinion there shouldn't be a discount on the fees. The letters of request from Central Oregon Landwatch and the Bishops is to split the fee between the three appellant parties. Commissioner Henderson wants to hear it de novo. The Board expressed support. Mr. Raguine noted each of the three parties have asked for a waiver of transcript of the hearing's officer hearing for all appealing parties. The Board expressed support for waiver of transcript. Mr. Raguine also asked for clarification on the Board's direction for hearing all six appeals full de novo. Mr. Raguine also noted in light of the rules of a public hearing, how should we limit testimony. Commissioner DeBone explained it wouldn't be limited testimony but a structured time limit. Discussion held on possibly holding the hearing on a Tuesday or Thursday, multiple hearing days, or time limits. The Board feels it should be one day but Commissioner Baney suggested limiting non-party public testimony to three minutes. Mr. Smith noted the staff can work out the time frames and coordinate with the Board Chair. Commissioner DeBone noted two projects and six appeals and in a public hearing it would be consolidated. Mr. Raguine noted a request from the Bishops the hearing would not be the week of March 26tH 4. Consideration of Appeal of Marijuana Production Appeal Isabella Liu, Community Development Department presented this item at the Work Session on Monday was asked to come back today on whether or not to hear the O'neil marijuana production appeal. Commissioner Henderson would be inclined to hear it. Three appeals were received. Commissioner DeBone suggests the time structure should be published and posted for these hearings. Minutes of Board of Commissioners' Work Session February 28, 2018 Page 4 of 8 BANEY: Move approval of ORDER NO. 2018-014 HENDERSON: Yes VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried S. Consideration to Hear an Appeal of a Hearing's Officer Decision Will Groves, Community Development Department was also asked to come back to the Work Session regarding the Snow Creek partition appeal. Mr. Groves reported on the history of the file. The hearings officer found this situation unusual and there was an intention of impact in the subdivision and agreed with the neighboring opponents. There was also an issue of fire hazard with access concerns. Commissioner Henderson inquired on the fee to the applicant which would be $4,327.55 to the County and if going to LUBA the fee would be in the range of $600. There are no strong policy goals but it would be the Boards discretion as it is going to LUBA either way. Commissioner Henderson would like to hear it. Commissioner DeBone is not opposed to hearing it but feels the future may be the Board is not the limiting factor in these appeals. Commissioner Baney feels if we know it is going to LUBA she is not compelled to hear this. The Board expressed support to hear the appeal. BANEY: Move approval of ORDER No. 2018-016 accepting the review HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried 6. Quarter 3 2017-18 Discretionary Grant Review Judith Ure, Management Analyst presented the discretionary grant applications received. Opportunity Knocks submitted an application for their annual meeting in the amount of $1,500 and the Board supported $1,500 from the fundraising category. OSU Extension submitted an application for the Living on a Few Acres conference in the amount of $2,000 and the Board supported $500 each. Saving Grace submitted an application for the two-day training of post -separation violation training in the amount of $2,000 and the Board was supportive of the full amount. Minutes of Board of Commissioners' Work Session February 28, 2018 Page 5 of 8 Citizens4Community submitted an application for the quarterly civility projects in the amount of $1,500 and the Board was supportive of $500 each. 7. Discussion and Consideration of Draft Policy on Records Retention Erik Kropp, Deputy County Administrator presented this item and gave a background on the audit of public records and retention. One recommendation of the audit was a development of a policy. For records retention, Deschutes County has always followed state law. Mr. Kropp reported on the OAR for county record retention. Upon approval of the policy and the County Administrator signature there will be a training program for departments. HENDERSON: Move approval BANEY: Second VOTE: HENDERSON: Yes BANEY: Yes DEBONE: Chair votes yes. Motion Carried RECESS: At the time of 4:01 p.m., the Board took a short recess and the meeting was reconvened at 4:05 p.m. 8. Discussion of Moving County's Personnel Rules out of County Code Erik Kropp, Deputy County Administrator noted the personnel rules are listed in chapter three of the County Code and if needing to make changes there is a public hearing required and 90 -day period prior to adoption. If moving the rules out of County Code they could simply be revised by Resolution. County Counsel Doyle noted the process would be to reformat them as personnel policies and the Board would sign an Ordinance to remove them from Code. Counsel Doyle would suggest having this done prior to migrating with the new vendor for County Code hosting. The Board expressed support. OTHER ITEMS: 0 Fair Board Appointments: Dan Despotopulos, Fair & Expo Director presented this item for consideration as there are vacancies on the County Fair Board. Mr. Despotopulos reviewed the term lengths and upcoming Minutes of Board of Commissioners' Work Session February 28, 2018 Page 6 of 8 term expirations. Mr. Despotopulos shared a vision of reappointments and advertising for vacancies. Commissioner Baney would look for an open process and want to be cognizant we are not Redmond centric. Commissioner Henderson thought of renewing the 2016 appointments but opening up the 2017 appointments. County Administrator Anderson noted the appointments and terms for the Fair Board are stated in ORS. The Board is supportive of structuring the term lengths. Commissioner DeBone supports reappointing the seats that had expired in 2016. The reappointment letters and then those that have expiration dates in March will receive a letter advising that terms will end in December to comply with ORS. 9. Meeting Minutes Format Discussion: This item has been deferred to a future meeting. COMMISSIONER REPORTS: Commissioner DeBone submitted a letter on smoke management to present in Washington DC to request the Oregon congressmen and senators to engage. Commissioner DeBone also reached out to the Forest Service and Deschutes Forest Collaborative. The letter should be revised to include as our representatives we request that you work to our best interest to seek a solution to protect our communities. EXECUTIVE SESSION: At the time of 4:33 p.m., the Board went into Executive Session under ORS 192.660 (2) (h) Litigation. The Board came out of Executive Session at 4:57 p.m. OTHER ITEMS continued: • The revised draft letter for smoke management was presented to the Board. BANEY: Move approval of signature HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Chair votes yes. Motion Carried Minutes of Board of Commissioners' Work Session February 28, 2018 Page 7 of 8 EXECUTIVE SESSION: At the time of 4:56 p.m., the Board went back into Executive Session under ORS 192.660 (2) (h) Litigation. The Board came out of Executive Session at 5:18 p.m. ADJOURN: Being no further discussion, the meeting adjourned at 5:18 p.m. DATED this Day of AL2018 for the Deschutes County Board of Commissioners. ATTEST: 4Recorg Sec etary Anthony DeBone, Chair, Philip G. Hohderson, Vice Chair Tammy Baney, Cdri�missioner Minutes of Board of Commissioners' Work Session February 28, 2018 Page 8 of 8 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — hftps://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, FEBRUARY 28, 2018 Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. 9-1-1 Radio Project/Harris Corporation - Steve Reinke, 911 Director 2. COIC Presentation on Local Food - Katrina Van Dis 3. Appeals: Board Consideration Whether to Hear Six (6) Appeals of the KCDG/Tanager Development. -Anthony Raguine, Senior Planner 4. Quarter 3, 2017-18 Discretionary Grant Review - Judith Ure, Management Analyst 5. Discussion and Consideration of Draft Policy on Records Retention - Erik Kropp, Deputy County Administrator 6. Discussion of Moving County's Personnel Rules Out of County Code - Erik Kropp, Deputy County Administrator 7. Meeting Minutes Format Discussion COMMISSIONER'S UPDATES Board of Commissioners Work Session Agenda Wednesday, February 28, 2018 Page 1 of 2 EXECUTIVE SESSION Executive Session under ORS 192.660 (2) (h) Pending Litigation At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public, however, with few exceptions and under specific guidelines, are open to the media. OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. U. I big 0111; Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetigggalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, February 28, 2018 Page 2 of 2 cy b -v v O OIQ O I I I i f0 a rD ffI I I I I ,rgykmj� III A 2017 study cozzducted by the Central Oregon Intergozrernrnental C07111cil, High Desert Food & Farm Alliance, and Oregon. State University Center, fbr,S'rrrall Farnrs arid Community Food Systenzs e.xa)nined the economic impact of sinall to nzid-sized fanners and ranchers arz the Central Oregon ecorzojrzy, arid this sector's potential foi-grozvth. SNAPSHOT OF OREGON MID-SIZED FARMS AND RANCHES .An interview of 28 Central Oregon farmers and ranchers was conducted in the summer of 2016. 'l:'hey grow, raise and sell products with the majority of sales being beef cattle and vegetables and their primary nnarhets being farm direct -to -consumer and wholesale. Of those interviewcd, 28 producers provided: 28 full and part-time jobs 1.5 million in. sales $248,000 in wages and salaries on their farm operations 61% OF PARRS WERI;, I S AITIBITI'D INTI IF, LAST 7 WARS Im RAtsl{ 8 "I'YI .S C V ANI:.MALS =41\ 491),'n OF 1'AIUMS OPLRLYTE ON 10 ACRES OR. LESS OF IRRIGATFID LAND Gaol 44 \'A1ut;nl?s OP VEG EI ALILES ,Tor every five. (5) cin-farm/ranch jobs we found that the economic activttyT generated two (2) additional off -farm jobs. For every dollar spent by coT:isunicrs on food from a local producer: l0 C Cl t C 0ri0nn Local food Imported food Study published hy: Centra/Ori on Inter over•aarreratal Coun r; _I 1I sh Desert .food c'-- ,,/ImAllianee, Osq,on State for Srraall I farms and Corrrrnunity I ood .Systems, and Karrrd Dvelopment Initiatives. .I?arlial frrnduag pi-ovided by U,VD.A I mal Food Pronaotiorz .hr�;ram and the Hord I4'ami,111 I'oarndation Central Orego?t is on tlix cusp of developing a strong and resilient local food ecoltomy. To measure the poteirtial growth of this sedw; and how zve can best invest in this growth, we .modeled three .feasible and relevant scenaaios. INTENSIFY PRODI...JCTION Using the production levels demonstrated by six farmers and ranchers in the study, this scenario assumes that producers could intensify their production practices (e.g. improve the volume and efficiencies of food produced and raised). FOOD NUB rte,. A food hub is a one-stop shop for farmers, food businesses and buyers to exchange local foods. A hub would aggregate, store, minimally process, market, broker and tic into the existing distribution system zn Central Oregon. a BUY LOCAL Buying local impacts the local food economy, particularly,if consumers shift nearly 10% of their total purchases of vegetables and fruits from commercial grocery stores to local farmers. Economic Impact of Local Food Producers in Central Oregon A survey based IMPLAN model incorporating the USDA AMS Toolkit guidelines October 2017 Mallory Rahe, Oregon State University Extension Service Katrina Van Dis, Central Oregon Intergovernmental Council Jess Weiland, High Desert Food and Farm Alliance Lauren Gwin, Center for Small Farms and Community Food Systems, Oregon State University Orec gron. State Un i'versity .e. Extension Service Center for Small Farms & Community Food Systems INTERGOVERNMENTAL C O U N C I L Partial funding for this study provided by The Ford Family Foundation and USDA Local Food Promotion Program Grant. We gratefully acknowledge the time of local food producers in Central Oregon who provided data for this study. Executive Summary Local food connects communities with their farmers, ranchers and is a value that is important yet difficult to measure. This report attempts to estimate the current and potential economic impact of locally produced food in the tri -county region of Central Oregon. This report presents finding from a total of 28 farmer and ranchers, or producers, surveyed and details out their earnings and expenditures. Our results show that producers created a total of 28 full and part-time jobs and generated $1.5 million in sales, with $248,000 in wages and salaries on their farm operations. Our approach to determining these values was to use the input-output analysis using IMPLAN and utilizing the U.S. Department of Agriculture, Agriculture Marketing Services, The Economics of Locol Food System Toolkit. We found that in 2016, the majority of the 28 producers were farming on 10 acres or less of irrigated land, and began their farm operation in the last 2-7 years. Farmers grew 44 varieties of vegetables and other crops and 8 different animals. The majority of sales were beef cattle and vegetables with their primary marketing being farm direct to consumer and wholesale. Unlike imported foods, which retain $0.28 for every dollar spent, 97 percent of sales by local producers stayed in the local economy. This means that the money spent by producers on their supplies, such as seeds and gas, created an additional 11 jobs and $1.1 million in additional sales throughout the region's economy. Local food producers create more jobs on farms and in the rest of the economy as compared to commodity focused producers: 26 jobs for every $1 million in sales compared to 12 jobs among commodity focused producers. When determining the multiplier effect, which is the ripple effect of spending money in the economy, local farmers were determined to be 1.74, compared to 1.38 for non -local farmers. This means that local farmers support an additional $0.36 of sales throughout the broader Central Oregon economy for every dollar of local produce sold. Comparatively, local ranchers have a sales multiplier of 1.79 as compared to 1.66 for non -local, and support an additional $0.13 compared for every dollar of sales. The study also estimated the potential growth in the economy by modeling three scenarios: l) increasing current production; 2) establishing a food hub; and 3) shifting grocery store purchases of vegetables to locally grown from farmers. Our findings show that by intensifying production levels to $3.1 million, 63 farm and non-farm jobs would be created with an addition of $1.68 million in wages and a total of $5.4 million in sales. This would also require that farmers more intensely use their existing acreage and irrigation and increase the number of greenhouses. By establishing a food hub and purchasing a minimum of $610,000 of local food products, 9 new jobs, $329,000 in wages and $642,000 sales would occur in the overall economy. Lastly, by shifting $775,000 of consumer food purchases from commercial grocery stores to farmers in the region, we would gain 13 full and part-time jobs, and an additional $263,000 of wages in the economy; 10 of those jobs would be on-farm with 52% of wages going to farmers. Overall, the report demonstrates that local food producers have an important role in our economy, and that with minor shifts in overall production there could be additional jobs and revenue throughout the region. Introduction The agricultural sector continues to evolve as consumer preferences change and expand markets for a wider range of products. Consumers deliberately choose to support local businesses for economic, environmental, and social reasons. Growth in farm -to -table restaurants appeals to consumers who desire fresh foods. Eating local can also be seen as the broadening of the buy local movement. This increased interest from consumers, combined with a growing effort to promote and fund local food, has increased the interest in understanding the economic impact of these actions. However, identifying and measuring economic impact of the local food sector is challenging due to limited data and varying definitions of local. In 2015, the U.S. Department of Agriculture (USDA) conducted the first national survey of local food marketing practices. Nationally, 167,000 farms sold $8.7 billion of food through direct marketing practices (direct to consumer, retailer, institutions, and to intermediates who sell locally branded products). In Oregon, 5,227 farms reported a total of $114 million in local food sales (these values are not available at a regional level and only focus on the economic value of production and not the additional related economic activity). While there are many different benefits provided by a local food system, there is little information on the economic impacts. How many jobs and incomes are directly or indirectly tied to local foods? What is the potential for growth? Interest in quantifying the economic activity associated with local food farmers has led the USDA and the Agricultural Marketing Service (AMS) to invest in a national Toolkit, The Economics of Local Food Systems,' to more consistently measure the economic impact of the local food sector. Key Definitions: LOCAL FOOD PRODUCERS farmers and ranchers who primarily focus on growing and selling food products through diverse market channels within the Central Oregon region. ECONOMIC IMPACT quantifying the total economic activity (jobs, labor income, and profits) that is associated with direct, indirect and induced impacts DIRECT IMPACT is the economic activity that occurs on local food producers' farms and ranches INDIRECT IMPACT is the economic activity of businesses that supply local food producers with inputs (what producers buy to produce their product) INDUCED IMPACT is the household spending of wages and profits (where producer and input suppliers profit and wages are spent) ECONOMICMULTIPLIER is the ratio between all of the economic activity associated with an industry and dividing this total by the amount of activity that occurs within the This study used the USDA Toolkit and conducted a survey of a sample of Central Oregon local food producers to create an economic model that estimated a portion of the economic activity that occured or could occur through the expansion of the local food system in the region. Local food producers are defined as farmers and ranchers whose primary focus is to grow and sell food products through diverse market channels within the tri -county region of Crook, Deschutes, and Jefferson counties in Central Oregon. The survey collected 2014 data on farm operations including sales by local food product type and marketing channel, employment and wages, and detailed farm expenditures. This information provided new descriptive information about the producers in the region, and was used to create an economic impact estimate with the IMPLAN economic modeling software. The estimated economic activity of the local food producers is reported in several ways: l) full and part-time jobs, 2) wages and farm profits, 3) taxes and returns to investors and lenders as well as 4) total sales. Employment numbers are considered to be all full and part-time jobs that are either on local food farms or non-farm jobs supported by the purchases of the local food producers. Wages and farm profits (labor income) represent the wages, salaries, and proprietor income earned by individuals who are working within the local food sector or whose jobs are partially or fully supported by the purchases of local food producers. These dollars reflect money that goes directly to households in the region. Taxes and returns to investors and lenders (called additional value added in IMPLAN) includes the taxes, royalties, and profits to shareholders, property owners and banks generated by local food producers and their input purchases. Total sales reflect the economic activity created as farmers buy inputs, pay employees and owners, and sell local food products. The total economic impact associated with the production of local food in the region includes three components: l) farm and ranch sales and employment [direct effects]; 2) sales and employment supported by the purchasing of farm and ranch inputs from other businesses [indirect effects]; and 3) sales and employment supported by the household purchases made using the wages and profits earned by local food producers or input suppliers [induced effects]. The results from this project include a description of key characteristics of the farms and ranches that participated in the survey and the economic impact estimates of a subset of the region's local food producers. Central Oregon Food and Agriculture Central Oregon is a region nearly the size of New Hampshire and is located on a high desert plateau on the east -side of the Cascade Mountain range. Comprised of Crook, Deschutes, and Jefferson counties, the region has high altitudes, variable rainfall, and a four season climate with a short outdoor growing season. Similar to all Oregon farms, a majority of farms in this region are small in size, have low total sales, and market only a small portion of their products through direct channels. In 2012, the USDA Agricultural Census counted 2,308 farms in the region. Of the total farms, 1,484 were cultivating on 10-49 acres (41%) or 1-9 acres (25%). Eighty-two percent of these farms earned less than $25,000 in annual gross sales, and 70% of all farms earned less than $10,000. Sixteen percent of farms in the region engage in direct marketing compared to 19% statewide, but direct marketing farms in the region earned roughly one-half the total sales of the state average in 2012. Focusing on a group of crops that might indicate the number of producers who could potentially contribute to local food production; we examined the number of farms growing vegetables, fruits and nuts and berries. The agricultural census combines the number of farms producing vegetables, melons and potatoes with farms producing vegetable, melon and potato bedding plants and seeds. The region has had a historical presence in vegetable seed production and so growth in this sector could represent either seeds or vegetables. Central Oregon farms are increasingly producing vegetable, melon and potato crops and seeds (56% increase) and fruits and nuts (growing from 2 farms to 14) and starting to 2 produce berries (growing from 0 to 16 farms) over the past 10 years (2002-2012). The region's most valuable agricultural products based on sales data in the 2012 Census were cattle and calves and hay production. With this brief overview, we now focus on a subset of the region's local food producers. Methodology This study estimated economic impacts by collecting data directly from a portion of the region's producers who primarily but not exclusively grow and market products within the Central Oregon region, utilizing a customized IMPLAN economic model based on survey averages. These two methods are briefly described below. The survey questions can be found in the Appendix. Local Food Producer Survey In 2016, a list of 83 Central Oregon producers was created through a collaborative effort between two non-profit organizations, High Desert Food and Farm Alliance (HDFFA) and Central Oregon Locavore, and a governmental organization, Central Oregon Intergovernmental Council (COIC), which work intimately with a network of farmers and ranchers in the region. Initial contact was made through email correspondence from COIC introducing the project purpose and the survey. HDFFA then made secondary contact via phone calls to schedule in-person interviews with farmers. Over the course of four months (April through July 2016), third and fourth contact attempts were made by both phone and email. If a producer remained unresponsive, a fifth, final contact attempt was made before removing the farm operation from the survey participation pool. Initially, farms were contacted based on a randomized draw, but ultimately HDFFA contacted every farm business. In order to accommodate producers' busy schedules, participants could take the survey one of three ways: l) in- person, on farm interview conducted by HDFFA; 2) phone interview conducted by HDFFA, or 3) self - completion online. The majority of survey respondents completed the survey in person. Surveys from 38 farming and ranching businesses were obtained, yielding a response rate of 46%. Survey data was not obtained from 45 of the 83 identified producers for the following reasons: 7 businesses agreed to participate but did not complete the survey; 10 businesses were excluded because they didn't file a Schedule F and the survey was not applicable to their operation; 10 businesses didn't wish to divulge any financial information or participate in the survey; 12 businesses were unresponsive or didn't share a reason why they opted to not participate; and 6 businesses were no longer in operation. It should be noted that collecting data on local food producers is challenging. Some business owners do not want to share financial information about their operations, and there is not enough available county or regional data readily available to approximate their operations. The USDA 2012 Census estimated Central Oregon contained just over one third of the state's farm direct marketers (372) and the average sales were $3,319 per farm for a total of $1.2 million in regional sales (see Table 1). Unlike the Census data, our survey collected partial information from a total of 38 farms who reported $1.7 million in total sales, an average of $46,838 on their 2014 Schedule F tax forms. Acknowledging that there are differences in definitions of sales and years between these two data sources, these two data points offer similar sales values but vastly different farm counts. One potential explanation is that there is a small set of farms actively engaging in direct marketing practices as their primary business activity, and that our survey of 38 producers included most of these active farms. These 38 farms represent approximately 10% of the producers who reported direct sales in the Census of Ag which suggests that most producers in the region who use direct marketing are either farms with very low total sales or farms that primarily rely on other marketing channels. Table 1: Comparing Census of Agriculture Direct Marketing Sales with Sales from a Sample of Local Food Producers 2012 Census of Ag Local Food Producer Survey 2014 Schedule F # of Avg. Direct # of Direct Direct Marketing Local Local Food Avg. Sales/ Marketing Marketing Sales per Food Farm Total Farm Farms Total Sales Farm Farms Sales Crook 94 $268,000 $2,851 9 $234,700 $26,078 Deschutes 246 $908,000 $3,691 20 $928,700 $46,435 Jefferson 32 $59,000 $1,844 9 $616,431 $68,492 Region Total 372 $1,235,000 $3,320 38 $1,779,831 $46,838 State Total 6,680 $44,177 $6,613 NA Customizing an IMPLAN Model The estimates of the economic impact in this report were constructed using the input-output economic model IMPLAN version three software and 2013 county -level data packages. A number of steps were used to customize the default data for the tri -county region with the survey responses. First, not all 38 farms chose to answer every question in the survey: 10 of the 38 farms were excluded from the calculation of economic impact: three farms chose not to share any sales or expense data; five farms elected not to share information about their input purchases; and two farms had more than 50% of their sales from off -farm sources and did not differentiate their expenditures between on-farm and off -farm inputs. The remaining 28 qualifying farms were classified as either primarily crop production or primarily animal production based on their reported sales totals by product. Producers reported expenditures as shares of their total expenditure across 26 different categories taken directly from their 2014 Schedule F tax form. Within each category, they also indicated what percent of their purchases were made outside the tri -county region; any purchases made outside the region did not generate additional economic impact in the region and are not part of this analysis. These expenditures were then summed to create two averages that represent crop only or animal only producers. The local expenditure categories from the Schedule F were then matched to IMPLAN commodities and used to create a "production function" for both the primarily crop and 4 primarily animal sectors which details the input purchases from other businesses within the region. The rest of the industries were modeled using IMPLAN default data and the model was not aggregated. All dollar values are rounded to the nearest one -thousand and reported as 2014 current dollars. The IMPLAN software makes a number of assumptions about the economy in order to create the input-output model. Five major assumptions are described here: 1) IMPLAN uses fixed production functions for all businesses within a sector. This means each business produces a homogeneous good or product with the same ratios of inputs. 2) IMPLAN assumes that there is homogeneity among goods and services within a sector, therefore all goods and services produced by every business in that sector has the same quality, durability, and value. 3) All businesses are operating under constant returns to scale, therefore the total amount of inputs required for each unit of output, and the price of inputs, does not change based on the size of the business or the total output. 4) The homogeneity of goods and services assumption does not allow cross hauling. If a product is produced and used in a region, it is assumed that purchasers of the product will always buy local first before importing. 5) Similarly, broad sector categories that contain multiple products may imply that a product is available locally when it is not. Sector categories that group together multiple commodities use national averages which might be more or less reflective of the commodity mix in a particular region. Despite these modeling limitations, an input-output model is widely accepted and using IMPLAN has become the standard method for producing these types of economic estimates. Descriptive Survey Results The survey collected data from producers to answer three primary questions: 1) What types of farm operations are engaging in local food production? 2) What inputs did local producers buy and from where? 3) How is this system changing and likely to change in the future? The economic impact reported here represents a portion of the total economic activity among local food producers. Descriptive results for each of these questions are discussed below and are based upon the total number of farms that answered each question. Responses that included complete sales and expenditure data were used in the IMPLAN model. There was no attempt to extrapolate beyond this set of producers to try to capture the economic impact of all local food producers in the region. Types of Farm Operations Engaging in Local Food Production In an effort to describe their operations, we asked local food producers for farm details, aside from their economic impact. A total of 38 producers provided partial information about the age, size, product mix, and market practices of their local food operation (20 operations in Deschutes County and nine each in Crook and Jefferson counties). Our findings show that producers have relatively new operations; 61% (22) were established in 2010 or later (Figures 1 and 2). Operations vary in size; nearly half are 10 acres or less yet four farms had 1,000 acres or more devoted to beef cattle production (see Figure 3). The majority of farms have irrigation on a small number of irrigated acres, less than 10. We found that producers are actively testing product mixes, adjusting the volumes of product, and accessing new markets. Among the 38 farms surveyed, local food producers are operating on a combined total of 20,860 acres of which 1,203 acres are irrigated (Figure 4). (The region has a total of 106,213 irrigated acres in the 2012 Agricultural Census.) Within the producers surveyed, a few large cattle operations are outliers containing large portions of the total and rented farm land. n. Local Food Producers by County Local Food Producers by Year 25 Established 20 20 %. / 30 22 15 � 20 9 9 9 10 r, 1 10 2 3 5 p �'� ' Before 1990- 2000- 2010 1990 1993 2009 2015 Deschutes Crook Jefferson Figures 1 and 2: Local food producers participating in the survey by county and year established n. Local Food Product Diversity and Sales by Product Type Local food producers are growing a diverse set of products. A total of 32 producers provided detailed descriptions of their 2016 production with a total of 44 types of crops and 8 types of livestock (see Table 2). Tomatoes, carrots, beets, and peppers are the most commonly planted crops (15 farms or more) while 14 operations raise cattle, and 10 raise swine. Producers also provided 2014 sales by major commodity groups; 42% of all sales came from beef cattle, 26% from vegetable production, 21% from fruit production, and the remaining 11% from other animal production. Table 2: Crops and livestock produced in 2016 by Local Food Farms (ry=32 farms) Local Food Producers by Tota[ Item Irrigated Acres of Local Food Item Acreage Item Producers 20 1s 2p 18__ Rhubarb 20,860 totalacres Asparagus 10 15 5 Rutabaga 1,230 irrigozer acres Beans 1 15 5 10 8 Beets 13 5 5 4 2 10 5 9 5 d 3 Hops 1 Squash (summer) 0 10 11-50 51-200 201- over Bok Choy 8 Leek Acres 9.000 1.000 Squash (winter) 0 - 10 Acres 11-50 51-200 Over 200 Figures 3 and 4: Local food producers by total size of operation and irrigated acres Local Food Product Diversity and Sales by Product Type Local food producers are growing a diverse set of products. A total of 32 producers provided detailed descriptions of their 2016 production with a total of 44 types of crops and 8 types of livestock (see Table 2). Tomatoes, carrots, beets, and peppers are the most commonly planted crops (15 farms or more) while 14 operations raise cattle, and 10 raise swine. Producers also provided 2014 sales by major commodity groups; 42% of all sales came from beef cattle, 26% from vegetable production, 21% from fruit production, and the remaining 11% from other animal production. Table 2: Crops and livestock produced in 2016 by Local Food Farms (ry=32 farms) Farms Item Farms Item Farms Item 2 Artichoke 3 Fruit trees 6 Rhubarb 4 Asparagus 10 Garlic 5 Rutabaga 12 Beans 1 Grains 5 Shallot 15 Beets 13 Herbs 10 Spinach 6 Berry plants 3 Hops 14 Squash (summer) 9 Bok Choy 8 Leek 10 Squash (winter) 13 Broccoli 10 Lettuce - Head 11 Tomatillo 3 Brussels Sprout 13 Lettuce - Mixed Greens 16 Tomato 11 Cabbage 6 Melon 7 Turnip 16 Carrot 1 Nuts 14 Cattle 9 Cauliflower 11 Onion 10 Swine 4 Celeriac 6 Parsnip 6 Poultry 8 Celery 13 Peas 2 Poultry- eggs 11 Collards/ Kale 15 Peppers 4 Lamb 5 Corn 13 Potato 4 Goat 14 Cucumber 13 Pumpkin 2 Dairy (All) 11 Eggplant 11 Radish 1 Ostrich 7 Marketing Practices Marketing practices for local food producers have expanded with population growth and consumer demand through a range of distribution channels and location; very few producers surveyed are marketing outside of Central Oregon. There were distinct differences between crop versus animal producers as to where they marketed their products. Crop producers cited farmers markets (30%) as the main sales channel followed by CSAs (16%) and restaurants (15%). In contrast, animal producers primarily utilized farm stands (42%), wholesale (29%), and farmers markets (13%). The importance of a regional wholesaler, Central Oregon Locavore, which sells farm -direct by consignment, was listed specifically by seven producers, and is separated from other wholesale sales in Table 3. Table 3: Describe where the farm business sold its products in 2014 Inputs Bought by Local Producers Local food producers purchase a high proportion of their inputs within the tri -county region. Primarily crop producers report purchasing 96.2% of all inputs locally, while primarily animal producers purchased a reported 98.6% of all inputs within the region. Purchases made outside of the region are considered "leakages" and these dollars do not produce a local economic impact. Because local food producers' purchase more inputs from within the region, they support additional economic activity for regional businesses. For more information see the Economic Impact section below. E? Primarily Primarily All Crop Animal farms Producers Producers Direct to Consumer Channels Farm Stands 27% 10% 42% Farmers Market 21 30 13 CSAs 8 16 2 Wholesale and Institutional Channels Other Wholesale 12 6 16 Central Oregon Locavore 10 9 13 Restaurants 7 15 2 Grocery Stores 4 6 2 Schools/Hospitals 1 3 0 Other Marketing Channels Auction 3 0 7 Other Farms 3 0 1 Other channels 5 7 3 Total Sales 100% 100% 100% Inputs Bought by Local Producers Local food producers purchase a high proportion of their inputs within the tri -county region. Primarily crop producers report purchasing 96.2% of all inputs locally, while primarily animal producers purchased a reported 98.6% of all inputs within the region. Purchases made outside of the region are considered "leakages" and these dollars do not produce a local economic impact. Because local food producers' purchase more inputs from within the region, they support additional economic activity for regional businesses. For more information see the Economic Impact section below. E? Current and Future Farm Operation Changes The survey asked local food producers a series of qualitative questions: 1. How has your operation changed in the past 2 years? 2. What plans do you have to change your operation in the next 2 years? 3. What are your priorities for external support? Overall, the majority of producers are actively changing their operations in response to expanding market opportunities and demand. Accessing additional markets and assistance marketing their products were respondents' main priorities. Changes to Operations A majority of respondents indicated they have implemented changes to their farm operations in the previous two years (65% recalling their farm operation practices in 2012 and 2013) and more (74%) were planning to make changes in the next two years (2016-2017). The most common response for change in both time periods was to increase production, followed by change product mix. Less than a quarter of respondents who were making changes reported adopting new methods or building additional infrastructure. Two respondents noted that they planned to grow fewer types of crops in order to improve efficiency. In the "other" category, one farm reported focusing on vertical integration in the past; while two operations are focused on either renting land or closing their businesses (see Figure 5). Figure 5: Operation changes made in the past 2 years or planned for the next 2 years Changes in Marketing Channels Changes in market opportunities experienced by respondents reflect growth in current distribution channels (see Figure 6). When asked what markets are growing and where demand is growing, 29 producers reported a general growth in the local food market, eight stated growth in multiple sales channels, and only two felt demand was unchanged. Similar to the current market channels, farmers market and farm stands were found to have the most sales growth (7 respondents), followed by restaurants (4), wholesale (4), CSAs (3), and Central Oregon Locavore (3). The primary geographic location for this growth was overwhelmingly the Central Oregon market. Of the producers reporting growth outside the region, two reported growth in Portland and one cited online sales. Figure 6: In What Markets is Demand Growing? (n=32 farms) Producer Priorities for External Support To further understand how to support local farm producers' adaptation to new markets, producers were asked two final survey questions. First, they were asked to indicate their interest in increasing wholesale marketing. While previous work by COIC and HDFFA indicate wholesale diversification is limited in the region because of lack of infrastructure, a high number of producers stated that they are interested: 12 currently sell and 8 additional farms are interested. Lower price points and the greater product volume required were the chief concerns for those stating they might be interested and the 4 farms that are not interested. Secondly, respondents were asked to identify priorities for COIC and HDFFA support in an area that they are unable to accomplish on their own. Figure 7 groups the responses into six categories. Assistance with marketing farm products and accessing additional markets was the most common priority (11 producers); followed by 8 responses that covered farmer education, networking and land access (6 respondents mentioned organic certification, wholesale pricing, beginning farmer resources, 10 or farm finances, networking and land access). Smaller numbers of producers requested assistance with distribution (4), educating consumers (3), a meat packing facility (2), more grant dollars and more labor housing were each mentioned once. Local Food Producer Priorities for Success Marketing Farmer Education, Networking, Land Access Distribution Consumer Education Meat Packing Facility Grant availability Labor Housing 4 Farms Reporting Figure 7: Producers identified their priority for outside assistance to increase farm business success Economic Impact Results To determine the total economic impact related to the local food sector, we used an input- output analysis. As mentioned above, there are three different types of economic activity that are included in our definition of economic impact: 1) Direct Impact: the economic activity on local food producers' farms and ranches, 2) Indirect Impact: the economic activity of businesses that supply local food producers with inputs (what producers buy to produce their product), and 3) Induced Impact: household spending of wages and profits (where producer and input suppliers profit and wages are spent). To support this effort, the USDA AMS local food Toolkit was used to inform this report and the IMPLAN modeling software was used for all impact calculations. First, the Toolkit was used to answer our central question, "What economic impact do producers who market food locally have in the tri - county region?" As a reminder, the results reported here cover 28 farms that reported complete sales and expenditure data and reflect a portion of the total local food producer economic impact. Second, we developed hypothetical scenarios that reflect the potential economic impact that could result from expanding the local food system in the region. 11 Total Economic Impact of Existing Local Food Producers in Central Oregon We found that the 28 Central Oregon local food producers surveyed contributed $1.5 million in total sales and supported an additional $1.1 million in sales through other industries across the economy. A total of 28.4 full and part-time jobs in the farm sector supported an additional 11 full and part-time jobs in other industries (see Table 4). These results and more are described below. 1) Economic activity on local food producers' farms and ranches (Direct effect) In 2014, the producers in our sample directly supported 28 full and part time jobs, generated $1.5 million in total sales, and created $248,000 in income. This total job number does not fully account for proprietor's labor as farm owners did not consistently report their own contributions- this also does not count the 21 family members and friends who worked on these farms without pay. 2) Economic activity of businesses that supply local food producers with inputs (Indirect effect) Farmers also support a number of businesses through the purchases they make to conduct their agricultural business. Our study found that $0.57 of every dollar of output (from majority crop producers) is spent in the local economy to support their business for items such as seeds or gas, whereas the majority animal producers spend a higher amount: $0.69 of every dollar. The purchases made by local food producers supported an additional 7 jobs, $173,500 in labor income, and $679,000 in sales across the broader economy. 3) Household spending of wages and profits (Induced effect) A final level of economic activity associated with direct marketing producers can be calculated from the household spending of earnings and profit from farmers, farm workers, and the owners and workers in businesses that supply farmers. A portion of these activities generate additional economic impact when households buy goods and services within the tri -county region. An additional 4 jobs, $148,000 in labor income, and $444,000 of sales are supported by the household spending of wages and profits from local food producers and their input suppliers. Table 4: Economic Impact of Surveyed Local Food Producers Many local food producers who participated in our survey are still growing their business with capital expenditures, testing product mixes, and planning to expand into new markets. Given these potential changes, the current economic activity in the local food sector does not represent the full 12 jobs Total Sales Labor Income Local Food Producers (direct) 28 $ 1,459,000 $ 248,000 Businesses that supply 7 $ 679,000 $ 173,500 producers (indirect) Household spending of 4 $ 444,000 $ 148,000 wages and profits (induced) Total Economic Impacts 39 $ 2,582,000 $ 569,500 Many local food producers who participated in our survey are still growing their business with capital expenditures, testing product mixes, and planning to expand into new markets. Given these potential changes, the current economic activity in the local food sector does not represent the full 12 potential. One of the strengths of the IMPLAN system is its ability to build possible scenarios and demonstrate how the rest of the economy might react to change within one or more sectors. Survey results and local knowledge were used to create three scenarios that represent expansion within the local food system. These scenarios are intentionally discussed independent of one another. Modeling Three Scenarios to Determine the Potential Economic Impact of Expanding the Local Food System in Central Oregon The current level of local food production is likely to increase as producers continue to change their operations in response to recognized and unmet market demand. In order to meet this demand, farmers need a reliable value chain and wholesale infrastructure that allows them to market their product and focus on farming versus marketing. Currently, large portions of the food supply in the region are imported, which further suggests that if production increases, demand is waiting. Three scenarios were developed to determine the potential economic impact of investing in the local food system. These three scenarios provide estimated economic impacts of expanding farm production and some forward linkages as a portion of the new supply reaches consumers. Scenario 1) expand and intensify the total production of current producers, thereby increasing the total volume of local food products available. Scenario 2) add a food hub with supply chain services including storage, minimal processing, aggregation and wholesale support and marketing for producers. Scenario 3) shift consumer purchases from retail grocery stores to direct purchases from farmers. The three scenarios were constructed to consider resource constraints and opportunity costs following the USDA AMS Toolkit. In the Central Oregon region, the top resource constraints are the available agricultural land and land with irrigation rights; however, it was concluded that our modest expansion of production would not require more land than is currently held by local food producers with existing irrigation rights. Instead it assumes producers will use their land more intensely as a result of additional experience and new stable markets. The second consideration, opportunity costs, is an estimate of the economic activity that might be displaced from one sector in order to accommodate proposed growth in the local food sector. A brief summary of the assumptions and opportunity costs for each scenario is below. Scenario 1 increases the supply of local food from farms without offsetting existing agricultural production and was based on knowledge that producers in the area have underutilized acres. This scenario does not model changes in demand in response to the increased supply. Scenario 2 adds new wholesale and distribution capacity in the region by creating a food hub. This scenario does not assume: a) that the food hub will displace existing wholesalers or distributors; b) that any new building will be constructed; or c) model an increase in farm production. 13 • Scenario 3 models the net economic impact of shifting consumers' purchases from imported food purchased at a grocery store (small loss of economic activity) to locally produced food purchased from farmers (increase of farm production). These estimates are deliberately conservative and should not be interpreted as guaranteed outcomes. Input-output modeling does not estimate the feasibility of any of these scenarios, and there was no attempt to quantify the amount of investment necessary. Table 5 provides a summary of each scenario. The results presented in this table for each scenario should be considered independently from one another. The Baseline is the survey based results of economic impact that was occurring in 2014 and explained above. The relationship between each scenario and 2014 production is explained in the bottom row. Table 7 provides the estimated economic impact of implementing all three scenarios — note this impact is different than adding up all of the impacts in Table 5 to avoid double counting economic activity. All of the reported values below combine the three different types of economic impact (1) direct, 2) indirect, and 3) induced) into a single estimate of potential jobs, labor income, and sales. Table 5: Summary of the Potential Economic Impacts of all Modeled Scenarios Economic Baseline: 2014 Scenario 1: Intensify Scenario 2: Open a Scenario 3: Shift Impacts Production on Production on Food Hub to Support $775,000 of 28 Farms Existing Farms Wholesale Market consumer (Increase supply Access (No increase purchases from only, does not model in farm production) grocery to direct demand changes) (increase farm Droduction) jobs 39 63 9 13 Labor Income $569,500 $1,332,000 $329,000 $263,000 Taxes, returns $411,000 $737,000 $96,000 $139,000 to investors* Sales $2.6 Million $5.4 Million $642,000 $1.3 Million Resource Not considered Underutilized None, responding to Fixed consumer Constraints irrigation increased production budgets No other businesses Displacing Opportunity Not considered Underutilized acres would be displaced, existing non -local Costs new demand food purchases Greenhouse financing, Aggregation, storage, Education and Potential Adjusted product mix, processing and outreach for Needed None Utilizing direct and distribution capacity farmers and Investments wholesale markets consumers Relationship to Can be added to Baseline N/A Replaces Baseline Baseline but it Can be added to Scenario requires more farm Baseline Droduction *This category is commonly referred to as additional value added" in IMPLAN reports. Adding these numbers with the Labor Income values produces the traditional input-output measure of value added. 14 Scenario 1: Intensify Production on Existing Farms Producers in this region face unique growing challenges. The region has a short growing season and often requires irrigation. Based on local knowledge and direct observations, there are currently idle irrigated acres that could be used for additional agricultural production, and most of the ranchers are dry -land ranching and do not need irrigation. While the exact number of acres is unknown, there is potential for modest expansion without displacing existing land uses. In addition, there are agricultural practices, such as greenhouses, that could increase per acre production. To develop this scenario, COIC and HDFFA used their knowledge to select six producers to approximate an expanded local food system. These selected producers have been in operation for at least two years (prior to 2014); seek a long term sustainable farm business; showed a loss of no greater than $20,000; contained a representative mix of products and farm size; and engaged in both direct and wholesale markets. We extrapolated their expenditures, wages, and profits to a scale of 30 farms (see Table 6). We took into consideration that the selected farms reflect the diversity of scale and structure, but recognize that they are not the most profitable in the sample. Table 6: Comparing Local Food Producers Under Current Production and Expanded Production (Scenario 1) Crop Producers Animal Producers All Producers 2014 Scenario 1 2014 Scenario 1 Scenario 1 Total Sales $683,289 $1.2 million $775,842 $1.9 million $3.1 million Total Employment 12 18 16 23 41 Output/Worker $55,000 $64,500 $50,000 $80,700 $72,600 Employee Compensation $5,900 $14,400 $8,400 $19,300 $16,850 % of Revenue Spent on 57 65 69 61 62 Inputs Relying on the survey data of these six farms, we revised our IMPLAN model to again estimate the economic impact. Collectively, farms and ranches in this scenario would generate $3.1 million in sales and support 41 full and part-time employees with $691,000 in labor income on the farms. An additional 22 jobs and $641,000 in labor income would be supported throughout the rest of the economy by the economic activity on these farms and ranches, and contribute an additional $737,000 in paid taxes and returns to investors and lenders. Scenario 1 Considerations and Caveats This scenario considers the potential impact of increasing the amount of farm production in Central Oregon, and is deliberately conservative. It would require a total of 1,067 acres for all production, excluding beef cattle. This assumes 25 acres of grain production; 118 acres of vegetable, melon and potatoes; 15 acres of fruit trees; 5 acres of greenhouses; 10 acres of poultry; 100 acres for horse, sheep, goat, and other animals. The scenario further assumes that the number of beef animals used for local marketing and consumption would increase from 739 to 1,765 animals. Some of the existing ranchers may be able to increase their stocking rates, or likely cattle producers in the tri - county region would shift from other markets to local markets. 15 This scenario would require additional infrastructure and market incentives, but appears possible given the existing land held by local farm producers. The survey documented 46 acres of field vegetables and 2.2 acres of greenhouses under production; both of which require irrigation. Under this new scenario the number of field vegetable acres needs to triple and greenhouse capacity should double. There are a total of 1,203 irrigated acres that are either owned or currently leased, this scenario would require approximately 10 percent of these acres be used for intensive vegetable/greenhouse production. An additional 3 percent of these acres would be devoted to grain and fruit and nut tree production. The remaining irrigated acres in combination with the unirrigated acres would accommodate hay and livestock production. Farmers are making capital investments in their farm operations and may need assistance resourcing additional capital. This scenario also requires off -farm investments of improved wholesale market support and technical assistance for existing farm operations. Based on local knowledge, this level of intensification seems reasonable. Creating this additional production will trigger other changes in the economy as demand responds to the increased supply of local produce and animal products. Scenario 2: Open a Food Hub to Support Wholesale Market Access Stabilizing the local food system for wholesale markets will require additional supply chain activities including: aggregation, simple processing, dry/cold/freezer storage, distribution and transportation systems, and a central coordination and administrative function to connect producers to markets, typically referred to as a "food hub." The food hub could be a new business or assume aspects of existing businesses such as distribution — this scenario assumes no construction costs. For the Central Oregon region, a food hub that focused on providing wholesale services would complement existing businesses and not compete for direct retail sales. Based upon previous research conducted by COIC and upon the 2015 National Food Hub Survey, we assumed that a minimum of $1 million in sales per year are required for the food hub to be sustainable." We estimated the additional economic activity generated from a food hub would support an estimated 9 full and part-time jobs, $329,000 of additional labor income, and $642,000 of additional sales throughout the broader economy. As noted above, these impacts are based only on the operation of the food hub and do not include the increased farm activity that may result from expanded access to markets. Scenario 2 Considerations and Caveats Reaching a total of $1 million in sales requires purchasing approximately $610,000 of local food products: this represents approximately 40% of the increased supply modeled in Scenario 1. As farmers noted on the survey, while some are interested in accessing wholesale markets they are also concerned about price and sufficient volume. It may take time to be able to establish a volume of sales as the food hub builds relationships with both buyers and farmers and farmers adapt to changing market demands. Research is being done nationally to figure out how to stabilize economic activity in this sector. This report does not attempt to provide a feasibility study for accomplishing these efforts 16 as this has been accomplished by COIC. Scenario 3: Shift Consumer Purchases From Grocery Stores to Local Food Producers This scenario examines the net economic impact of consumers shifting from purchasing imported vegetables at a grocery store to purchasing locally produced vegetables directly from farmers or another wholesaler (see Table 7). This scenario assumes that consumers in the region have fixed budgets for food purchases. As supply of locally produced food increases, local demand for all food will remain the same. The net impact of shifting $775,000 in retail food purchases to local farmers results in an increase in 13 jobs throughout the economy (17 jobs are created and four are lost), a $263,000 increase in regional labor income, and an additional $139,000 of other value added activities. This scenario assumes that there is an opportunity cost to growth and that consumers are spending less money at grocery stores (described below). When consumers purchase products at retail stores, 28% of their total purchase is assumed to be retained by the retailer and used to cover the costs of running the store, paying employees, and retailer. profit. The remaining 72% of all sales are assumed to be spent purchasing the products that are sold in the store and that these products are produced outside of the region. Switching $775,000 of food purchases from the retail food sector to local food farmers and ranchers retains more of the total sales within the region (an estimated 97% compared to 28%) which supports not only the farms but the businesses supporting farms and household spending. The loss of $775,000 of commercial grocery stores sales would result in an estimated - $120,000 of labor income and loss of 3 full and part time jobs in this sector. Local businesses that support grocery stores would lose $75,000 in related sales, which would translate to a loss of 1 job and a $25,000 loss in labor income. The sectors of the economy that are most closely tied to retail food stores include the real estate sector, wholesale trade and transportation sectors. Scenario 3 Considerations and Caveats This change represents a small portion of total grocery store sales in this region. Currently, there are an estimated 2,104 full and part time jobs in grocery stores in Central Oregon, and $128 million was spent at these grocery stores in 2014. Shifting $775,000 in sales away from the commercial grocery store sector would represent 0.6% of all sales. Reaching $775,000 in sales could occur if 10% of households in the region spent $93 a year on local food products. This report does not attempt to quantify the resources necessary to shift consumer purchases. Total Economic Impact Across All Three Scenarios The three scenarios above were modeled to represent three distinct interventions into the local food system, however, each scenario assumes different demand and supply adjustments. Therefore, adding the scenarios together would create excess on farm production, Table 7 provides a combined 17 estimate of economic impact that does not overestimate on-farm production beyond the assumptions in Scenario 1. It is impossible to fully model all of the changes that may occur in the region's economy as the local food sector expands. One possible explanation for where the increased farm production from Scenario 1 would be sold is explored in Table 8 below. Table 7 provides a set of estimates assuming: 1. Local production increases as described in Scenario 1, 2. A food hub is operating but as described in Scenario 2, 3. Consumers have already shifted their purchases —a portion of Scenario 3. Table 7: Net Economic Impact Potential of an Expanded Local Food Sector Total Economic Impacts 68 $5,994,000 $1,516,000 Table 8 provides hypothetical market channel distribution sales for the increased volume of on farm production (Scenario 1), the addition of a food hub (Scenario 2), and changes in consumer food purchases (part of Scenario 3). We estimate that nearly 40% of all of production would be sold to a food hub, which would provide the intermediary role between producers and wholesalers: restaurants, grocers, and institutions. Currently, farm direct markets account for 56% of total sales of surveyed producers. We assume that these channels will continue to grow but more slowly and will account for 48% of the expanded total sales. Further, we note that a few local food producers are already accessing wholesale markets (restaurants, grocers, and institutions) accounting for 12% of all sales. We assume that this percentage will likely decrease with the addition of a food hub as farmers find it easier to sell products to the food hub instead of working with wholesalers. These market destinations are hypothetical but are important in considering the potential economic activity that might be displaced by an increase in local food production. The economic impact of this combined scenario does not attempt to estimate the additional jobs that would be created in wholesale businesses that will be handling an increased volume of food. The final column in Table 8 provides an estimate of the potential amount of grocery store purchases that could be replaced by consumers choosing to buy from farmers directly or through Locavore. The economic impact of these lost retail sales are used in Scenario 3. We assume that roughly half of the expanded farm production in the three county region will replace grocery store purchases outright assuming more consumers will chose to purchase food directly from farms or through Locavore. The rest of the increased production is assumed to replace imported food and food 18 jobs Total Sales Labor Income Local Food Producers & food 43 $ 3,490,000 $ 821,000 hub employees (direct) Businesses that supply 16 $ 1,604,000 $ 433,000 producers (indirect) Household spending of wages 9 $ 900,000 $ 262,000 and profits (induced) Total Economic Impacts 68 $5,994,000 $1,516,000 Table 8 provides hypothetical market channel distribution sales for the increased volume of on farm production (Scenario 1), the addition of a food hub (Scenario 2), and changes in consumer food purchases (part of Scenario 3). We estimate that nearly 40% of all of production would be sold to a food hub, which would provide the intermediary role between producers and wholesalers: restaurants, grocers, and institutions. Currently, farm direct markets account for 56% of total sales of surveyed producers. We assume that these channels will continue to grow but more slowly and will account for 48% of the expanded total sales. Further, we note that a few local food producers are already accessing wholesale markets (restaurants, grocers, and institutions) accounting for 12% of all sales. We assume that this percentage will likely decrease with the addition of a food hub as farmers find it easier to sell products to the food hub instead of working with wholesalers. These market destinations are hypothetical but are important in considering the potential economic activity that might be displaced by an increase in local food production. The economic impact of this combined scenario does not attempt to estimate the additional jobs that would be created in wholesale businesses that will be handling an increased volume of food. The final column in Table 8 provides an estimate of the potential amount of grocery store purchases that could be replaced by consumers choosing to buy from farmers directly or through Locavore. The economic impact of these lost retail sales are used in Scenario 3. We assume that roughly half of the expanded farm production in the three county region will replace grocery store purchases outright assuming more consumers will chose to purchase food directly from farms or through Locavore. The rest of the increased production is assumed to replace imported food and food 18 products used by restaurants and institutions. Replacing imported food with locally produced food retains more money within the Central Oregon economy and we do not model which economies will experience these lost exports. Table 8: Potential Destination for Additional Local Food Production Current Market + Destination of New - Expanded Market Lost Grocery Channels Sales Channels Store Purchases Market Channels Sales % Sales % Sales % from New Sales Farm Stands $391,745 26.8 $193,255 12.6 $585,000 19.5 $193,255 Farmers Market $312,812 21.4 $197,188 12.8 $510,000 17.0 $197,188 CSAs $112,554 7.7 $212,446 13.8 $325,000 10.8 $212,446 Other Wholesale $171,023 11.7 $48,977 3.2 $220,000 7.3 $48,977 Locavore Wholesale $141,788 9.7 $123,212 8.0 $265,000 8.8 $123,212 Food Hub NA 0.0 $610,000 39.7 $610,000 20.3 Restaurants $106,707 7.3 $38,293 2.5 $145,000 4.8 Grocery Stores $51,161 3.5 $53,839 3.5 $105,000 3.5 Schools/Hospitals $19,003 1.3 $14,997 1.0 $34,000 1.1 Auction $42,390 2.9 $16,370 1.1 $58,760 2.0 Other Farms $45,314 3.1 $29,686 1.9 $75,000 2.5 Other channels $67,240 4.6 NA 0.0 $67,240 2.2 Total Sales $1,461,736 100 $1,538,264 100 $3,000,000 100 $775,078 A Context for these Results Each type of economic activity produces different effects within a broader economy. When estimating economic impact with an input-output model, these impacts are most easily compared across sectors with multipliers. A multiplier is the ratio between the total economic impact associated with an industry divided by the amount of direct impact that occurs within the industry. Multipliers are most useful when they have a benchmark, or another industry to provide context to the values of interest. The Central Oregon economy has a diverse set of industries, and yet commodity agricultural sectors may provide the best comparison to local food producers (see Table 9). This is consistent with other work that has used the USDA Toolkit. Comparing Multipliers Table 9 provides four multipliers to describe the economic impact of local food producers and compares their impact to commodity agricultural producers. Employment and total output (sales) are the most commonly used multipliers to determine the economic impact on the economy. Each multiplier is described below. The employment multiplier tells us how manyjobs are generated throughout an economy for every job within the sector of focus. Table 9 provides employment multipliers for local food crop and animal -only producers, and three commodity comparison crops (vegetables; all other crops; and beef cattle). In the employment multiplier, local food crop production generates similar but slightly fewer 19 additional jobs throughout the economy than commodity vegetable production or commodity beef cattle ranching, but more than all other commodity crop production. For example, one on-farm local food producer job supports an additional .38 to .48 jobs throughout the rest of the economy. This employment multiplier represents formal paid work. Labor income offers another way to measure economic impact. The labor income multiplier illustrates the ratio of how many dollars of labor income (owners and employees) are supported throughout the economy by each dollar of income earned by local food producers and their employees. The labor income multipliers are higher for local food crop producers than the comparison commodity crop categories. The labor income multipliers are similar and higher among local food animal producers and commodity beef cattle ranchers not selling in local markets. These local food producer sectors have higher labor income multipliers partially because they purchase a lot of inputs and support economic activity and therefore employees in the broader economy and partially because the wages among these producers were considerably lower as compared to commodity producers. Lower wages can partially be explained by the number of low paid interns which distort the average wage across all operations. Table 9: Comparison of Multipliers Local Foods Vegetables, All other Local Foods Crop vegetable seed, crops Animal Beef Producers potatoes (hay) Producers Cattle Employment 1.38 1.41 1.16 1.40 1.62 Labor Income 1.87 1.52 1.75 2.83 2.96 Total Value Added 1.98 1.27 1.60 2.84 1.80 Total Output 1.74 1.38 1.62 1.79 1.66 Source: edited IMPLAN v3 model, 2013 data The total value added multipliers combine the economic impact of labor income, taxes, and returns to investors and lenders. This definition of "value added" captures the amount of the final sale price which can be attributed to skilled labor, management decisions, and profits, allowing a calculation of "value added" for even raw commodities. This measure provides a summary statement of all of the economic value of the unique labor and skills and other economic activity that adds value to the products purchased and produced by local food producers. Local food producers have substantially higher value added multipliers in part because they require more labor. This multiplier captures the extent to which this sector is monetizing skills, paying owners, and generating returns to investors and lenders. A final set of multipliers is total output, this is a measure of how many dollars of sales throughout the rest of the economy are produced for every dollar of sale within an industry. This report has not focused on output totals previously following the recommendations of the USDA Toolkit which notes the greater potential for overstating results. Although commonly used, it is hard to assume that all of the additional output that occurs throughout an economy would disappear if the primary industry no longer existed, regardless of the choice of primary industry. P411 Our research produced similar results to previous studies, in Central Oregon direct marketing farmers spend more of their revenue on supplies and buy more supplies locally as mentioned above. These two factors increase the amount of additional economic activity that occurs. Not all producers in our survey were operating at a profit, a finding which is distorted by excluding additional revenue generating activities like timber sales and agri-tourism, by relying on a Schedule F tax form to record profits, and that many of the regions farmers are actively investing in growing their business. Comparing Labor Intensity of Production Another common way to compare economic impact across sectors also focuses on employment effects. Table 10 offers a comparison of the estimated jobs required to produce $1 million of sales within each industry. As a reminder this model assumes constant returns to scale. As noted above, more jobs are required to produce local foods than similar non -local agricultural production. Combining the employment multiplier with the labor intensity estimates we conclude that local food producers have more labor intensive operations which benefit the economy by providing more jobs, and most of the jobs that are created as this sector expands occur on farms and ranches. Table 10: jobs required to produce $1 million in agricultural sales across production types Summary This study estimates the economic impact of local food producers in the Central Oregon region using the AMS USDA Toolkit The Economics of Local Food Systems. A detailed operation and expenditure survey was used to collect data from Central Oregon farms and ranches who primarily focus on growing and selling food products through diverse market channels within the Central Oregon region in order to customize an IMPLAN model. This survey also provided an overview of local food producer characteristics. The descriptive farm operation data from the survey revealed a diversity of crop and animal production by a set of producers actively adapting to growing markets. The majority of surveyed local food producers were making on-farm capital investments and experimenting with different product mixes. Many farm operations were established after 2010 and were not profitable in 2014, based on their Schedule F responses. Farmers in this high desert region need irrigation rights, water access and season extenders to support a range of local food production. 21 Full and Part-time Production Type jobs required Direct marketing crops 18 Commodity crops 6 Direct marketing livestock 20 Commodity beef 11 Commodity dairy 5 Commodity poultry 2 Summary This study estimates the economic impact of local food producers in the Central Oregon region using the AMS USDA Toolkit The Economics of Local Food Systems. A detailed operation and expenditure survey was used to collect data from Central Oregon farms and ranches who primarily focus on growing and selling food products through diverse market channels within the Central Oregon region in order to customize an IMPLAN model. This survey also provided an overview of local food producer characteristics. The descriptive farm operation data from the survey revealed a diversity of crop and animal production by a set of producers actively adapting to growing markets. The majority of surveyed local food producers were making on-farm capital investments and experimenting with different product mixes. Many farm operations were established after 2010 and were not profitable in 2014, based on their Schedule F responses. Farmers in this high desert region need irrigation rights, water access and season extenders to support a range of local food production. 21 Based on 2014 production local food producers provided a regional economic impact of approximately $1.5 million in total sales, a total of 28.4 full and part time jobs, and supported an additional 11 full and part time jobs in other industries. Local food producers directly contributed or indirectly supported $2.6 million dollars of economic activity in the tri -county region. We estimated the economic impacts that could result from growth in three scenarios: (1) intensifying the current production on existing farms, (2) establishing a food hub to facilitate expanded production, and (3) the net economic activity that results from shifting consumer purchases to local foods. Each of these scenarios represents distinct types of changes in this local food system. Increased supply of local food needs to match unmet demand, which are modeled in Scenarios 2 and 3 and provide new potentials for the current marketplace. Farmers and ranchers in the region were pursuing growth and adapting their production to reach new markets and have to balance their production (supply) with demand. Marketing assistance was the most frequently cited need among local food producers. In addition to providing market intelligence and support, COIC and HDFFA need to balance producer readiness with the overall volume and marketplace and consumer demands. Some food systems have pursued establishing a food hub to provide a key intermediary step, but not without difficulties. The food hub needs to meet a certain threshold of sales to be viable, but farmers are constrained with how rapidly they can scale up, and have difficulty producing without a known market destination and price. This report provides little clarity on the matter, but inadvertently illustrates this dilemma. Given that Central Oregon, specifically the city of Bend, has one of the fastest growing populations in the nation (ranked 61h in 2017) and is a popular destination for recreational based tourism, the region's demand for locally produced foods could grow. Despite the challenging growing conditions in the region, there are underutilized irrigated acres which suggest that this sector has the key resource input to continue to grow. Local food producers contribute a wide range of benefits to a region, and in this report we remain narrowly focused on the economic impacts that were modeled through three rounds of spending (direct, indirect, and induced) in an input-output model. Total economic impact varies by industry and is most readily impacted by the amount of the final sales price that is used to purchase inputs, the degree to which those inputs are purchased locally, and the labor intensity level of the farm sector and the businesses that provide inputs to the farm sector. Compared to non -local commodity agricultural production within the region, local food producers spend more of their total sales on inputs, purchase more of their inputs locally and have more labor intensive farm operations. As a result, local food production supports more sales throughout the broader economy but fewerjobs and supports more dollars of wages, profits, taxes and returns to investors for every dollar within the industry than commodity agriculture production. The toolkit and a wide range of additional resources can be accessed here: https://Iocalfoodeconomics.com/ Assumes the survey median of 9 jobs (for food hubs in business more than 2 years), establishes one million in sales and the survey average of expenses as a percentage of revenue see page 40 of Hardy, J., Hamm, M., Pirog, 22 R., Fisk, J., Farbman, J., & Fischer, M. (2016). Findings of the 2015 National Food Hub Survey. East Lansing, MI: Michigan State University Center for Regional Food Systems & The Wallace Center at Winrock International. Retrieved from http://foodsystems.msu.edu/resources/2015-food-hub-survey. 23 Appendix A Central Oregon Local Food Farm Survey 6iHT&A16�E6UM RDUi OSU FOOD RURAL DEVELOPMENT INITIATIVES �, Oregon State Ireaeuu�arleaewrat &FARM u+c�veas�xr C n U H C I I: ALLIANCE The Central Oregon Intergovernmental Council (COIC), High Desert Food and Farm Alliance (HDFFA), Oregon State University Extension (OSU) and Rural Development Initiatives (RDI) are working with local producers in Deschutes, Jefferson and Crook Counties to create an estimate of the current size of the local food economy. This estimate will detail the total value of sales and the total jobs in the farm industry as well as the additional jobs and sales that support the industry or are made possible by the sale of local food products in the region. This report will produce an "economic multiplier" for the portion of agricultural production that is marketed and sold for regional consumption (local foods). Similar reports have been produced for other agricultural production and other industries and this information can provide valuable insight into the current size of economic activity and the potential benefits of future investments that expand the industry. This data will complement previous efforts by COIC and HDFFA that have focused on estimating the demand for regionally produced food. The quality of the report depends on gathering data from actual growers in our region to customize national averages in a variety of crop and livestock production areas. The attached survey contains questions that will allow Extension agents at Oregon State University to customize the economic model and run the results. We would like to ask you to participate in our survey. Jess Weiland from HDFFA will be contacting you soon to see if you have any questions and if you are willing to schedule an interview to answer the survey questions listed below. This interview will take no longer than 90 minutes. Our goal is to interview 73 producers in the tri -county region and provide averaged data by major crop/livestock category to Oregon State. No individual data will be shared with anyone outside of the interview and your farm name will not be recorded with your survey responses at any time. You can refuse to answer any question and end the survey at any time. The economic results will be shared publicly and you will be provided access to the final report. We are also working with Rural Development Initiatives (RDI) to publicize the results and create a strategy for future actions at the end of the report. Our goal is to support and improve the local food system in our region, we would be more than happy to follow-up with information or discuss other potential projects or services that might support your farm business. If you have any questions, please let us know. We recognize your time is valuable and we hope you will consider participating in helping us improve current economic information about our local food industry. Sincerely, Katrina Van Dis, Program Administrator Central Oregon Intergovernmental Council kvandis@coic.org 541-504-3307 Jess Weiland, Food & Farm Director High Desert Food and Farm Alliance iessc�hdffa.or„ 262-424-8481 23 Appendix A Central Oregon Local Food Farm Survey 1. In which county is your farm business located? 2. When did this farm business first start? 3. Describe your farm operation: Type of farm operation Acres or # of animals Sales % of total (yln) I gross sales Grain farming Fruit tree, hazelnut, and berry farming Greenhouse, nursery, and floriculture production Cattle ranching and confinement Poultry and egg production Other: Total I I 1 100% 4. Describe the land in this farm business. Total Acres # Owned # Rented or Leased # Irrigated 5. Using 2014 data, estimate total annual gross sales, operating expenses, and total employees Total annual sales Total operating Total annual payroll ($) line1a expenses ($) line 33 # Paid employees Unpaid workers Part-time I Full-time I Seasonal Part-time I Seasonal Full-time (incl. family) 24 Appendix A Central Oregon Local Food Farm Survey Did any of the farm employees live outside of the tri -county region (Deschutes, Jefferson, Crook)? If so how many? Outside of the state? If so how many? 6. Please describe where the farm business sold its products in 2014 both where and by which marketing channels. It may be easiest if you complete the `% of total sales' column first. Marketing channel, sales outlet % of total sales % of individual category sales by location (where you sold it)* % in Crook, Jefferson, or Deschutes % sold within Oregon % sold outside Oregon TOTAL SALES TO OTHER FARMS DIRECT SALES: Farmer's Markets CSAs Farm Stands WHOLESALE SALES Restaurants Schools/hospitals Grocery stores COMMODITY SALES Sold to a grain elevator Auction OTHER TOTAL 100% 25 Appendix A Central Oregon Local Food Farm Survey 7. Please describe the purchases related to operating the farm business and where those purchases were made. TOTAL (2014) OPERATING EXPENSES FROM QUESTION 51 Line 33: Appendix A Central Oregon Local Food Farm Survey 8. In what markets and where is demand growing for the farm's production in 2015 compared to 2014? 9. What product(s) are you selling more of compared to 2014? 10. If not currently being done, is there interest to market farm products at the wholesale level? Yes / No / maybe 11. Does the farm business use season extenders (ie: greenhouses, high tunnels or row covers)? If so, what crops are grown and what months are they grown in? 12. Have you made any changes with crop production in the past 2 years? Why or why not. 13. Do you have plans to make any changes in crop production in the next 2 years? Why or why not. 14. Please circle any of the crops that are or will be under production in 2016 (see last page). 15. Please help us set some priorities on how we can help your farm business to expand and succeed. What one thing would help your farm business be more successful that you're unable to accomplish on your own? 16. You will be provided the findings from this report. How would you like to receive the information? 17. Based on your answers the questions today. Would you feel comfortable if we contact you if we have clarifying questions? 27 Appendix A Central Oregon Local Food Farm Survey PRODUCE MEAT Artichoke Lettuce Cow Pig Asparagus Head Poultry Mixed Greens Beans (snap, green, etc.) Lamb Melon Ostrich Beets Goat Onion Bok Choy Other Parsnip Broccoli DAIRY All Peas Brussels Sprout Peppers FRUIT Cabbage Berry plants Potato Carrot Fruit trees Pumpkin Cauliflower NUTS Radish Celeriac Rutabaga GRAINS Celery Shallot Collards (including Kale) HOPS Spinach Cucumber Squash (winter) Eggplant Squash (summer) Garlic Tomatillo Herbs Tomato Kohlrabi Turnip Leek W. \ / � k 7 / ƒ \ 0- j CL C7 » ƒ ] a @ & & ® `G \ ^ t } o.t $ o ƒ $ n $ % \ $ \ J 3 n \ G < o = g & _ < z / = @ « 2 r J 9 $ J / \ j ƒ f 2 4) J& \ / 7 §. \ 0 � / / � g \ g \ _ _ / / . ƒ \ 0 \ / / / c / g =3 } / \ % / - \ / \ & ƒ \ CL 3 7 5 s' y o \ / rD (D czQ f / I / 2L E 0) 2 / / 2 / 2\ Q E ® s E ° G 2 \ / ? G ° ] / ? \ \ ? ~ 2 �_ . 3 _ ®2 ® E O ) 9 G / ^ / mL� : �~ rb Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 28, 2018 DATE: February 23, 2018 FROM: Anthony Raguine, Community Development, 541-617-4739 TITLE OF AGENDA ITEM: Appeals: Board Consideration Whether to Hear Six (6) Appeals of the KCDG/Tanager Development. RECOMMENDATION & ACTION REQUESTED: The applicants, KC Development Group, LLC and Tanager Development, LLC, applied for land use approval for two projects. 1. Land use file nos. 247 -17 -0000627 -CU and 629 -PA were for surface mining in conjunction with an Irrigation District and an amendment to add the subject property to the "Non -Significant Mining Mineral and Aggregate Inventory" (Table 5.8.2) in the Deschutes County Comprehensive Plan. 2. Land use file nos. 247-17- 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM were for a recreation -oriented facility and 10 -lot subdivision. The Deschutes County Hearings Officer approved the Plan Amendment and denied the Surface Mining. Additionally, the Hearings Officer approved the Subdivision and denied the Recreation -Oriented Facility. In response to the Hearings Officer's decisions, six (6) appeals were filed. The nature of the appeals is detailed in the associated staff memo and attachments. ATTENDANCE: Anthony Raguine, Senior Planner Community Development Department ^ Planning Division Building Safety Division Environmental soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 37708-6005 (541)386-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: February 23, 2018 TO: Board of County Commissioners (BOCC) FROM: Anthony Raguine, Senior Planner RE: Appeals of KCDG and Tanager Surface Mining, Plan Amendment, Recreation - Oriented Facility and Subdivision projects; Land Use File Nos. 247 -17 -00627 -CU, 629 -PA, 636 -CU, 637 -TP, 639 -CU, 640 -SP, and 641 -LM BACKGROUND The applicants, KC Development Group, LLC and Tanager Development, LLC (hereafter "KCDG"), applied for land use approval for two projects. • Land use file nos. 247 -17 -0000627 -CU and 629 -PA were for surface mining in conjunction with an Irrigation District and an amendment to add the subject property to the "Non - Significant Mining Mineral and Aggregate Inventory" (Table 5.8.2) in the Deschutes County Comprehensive Plan. • Land use file nos. 247-17- 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM were for a recreation -oriented facility' (ROF) and 10 -lot subdivision. The Deschutes County Hearings Officer (HO) rendered decisions on both projects. PLAN AMENDMENT & SURFACE MINING In the Rural Residential (RR10) Zone, a conditional use permit is required pursuant to Deschutes County Code (DCC) 18.60.030(W) for the following use: W. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off- site use, storage, and sale of excavated material. 1 The ROF consists of a north lake and a south lake. The north lake is proposed for passive recreation, with the south lake designed for water skiing. Quality Services Pe; fibrined zvith gide Per DCC 18.128.280(D)(2), surface mining of the subject property can only occur if the property is included on the County's "Non -Significant Mining Mineral and Aggregate Inventory."2 The HO found the applicant met all the requirements to have the property included on the non-significant inventory and approved the plan amendment. However, the HO found that the relationship between KCDG and Tumalo Irrigation District (TID) did not exist at the time the surface mining activities occurred, and does not exist today. For these reasons, the HO determined that the surface mining activities could not have been in conjunction with an irrigation district. Therefore, the conditional use permit for surface mining was denied. III. SURFACE MINING / PLAN AMENDMENT / APPEALS In response to the HO decision on the surface mining and plan amendment project, three appeals were filed and are described below. A. KCDG KCDG appeals the HO's denial of the surface mining application to address the issues summarized below:. 1. The HO incorrectly interpreted the definition of surface mining, which could have broader implications for grading and excavation associated with construction activities. 2. The HO incorrectly applied the legal principles of issue and claim preclusion to the decision. 3. If the surface mining was not conducted in conjunction with an irrigation district, then the grading and excavation to create the lakes are exempt from the definition of surface mining as "on-site construction.113 4. The HO erred in finding that ORS 517.780 preempts the County's definition of "surface mining." 5. The HO decision effectively precludes KCDG's ability to refile a denied land use application, which is in violation of DCC 22.28.040.4 2 The subject property was previously known as Surface Mining Site No. 294. In 2007, the county determined the site was fully mined and reclaimed, and approved a re -zone of the property from Surface Mining to RR10. For this reason, any surface mining of the property is subject to the criteria for non-significant mineral sites under DCC 18.128.280. 3 "Surface mining" means A. Includes: 1. All or any part of the process of mining by removal of the overburden and extraction of natural mineral deposits thereby exposed by any method including, open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off site borrow pits, except those constructed for access roads; and 2. Mining which involves more than 1,000 cubic yards of material or excavation prior to mining of a surface area of more than one acre. B. Does not include: 1. The construction of adjacent or off site borrow pits which are used for access roads to the surface mine; 2. Excavation and crushing of sand, gravel, clay, rock or other similar materials conducted by a landowner, contractor or tenant on the landowner's property for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on site road construction and other on site construction, or nonsurface impacts of underground mines; and 3. Batching and blending of mineral and aggregate into asphaltic concrete or portland cement concrete. (emphasis added) 4 22.28.040. Reapplication Limited. BOCC Memo Re: Appeals of KCDG Page 2 of 7 6. The HO erred by not addressing the applicant's legal arguments related to issue and claim preclusion. 7. The HO misconstrued DCC 18.128.015(A) and (B) to require that structures appear natural.5 In its notice of appeal, KCDG requests a de novo review; tolls the 150 -day land use clock to June 30, 2018; and requests a waiver of the transcript requirement pursuant to DCC 22.32.024(D). B. Central Oregon Landwatch (COLW) COLW appeals the HO's approval of the plan amendment to address the issues summarized below: 1. OAR 660-023-0000 do not allow surface mining of non-significant sites. 2. The HO erred by assuming the County intended for new sites to be added to the non- significant inventory. 3. The plan amendment requires a Goal 5 analysis. 4. The County cannot approve an application for land use development if the property is in violation of land use regulations. 5. The original topography of the reclaimed surface mining pit should be restored. COLW requests that the appeal fee be split between all appellants. COLW also requests a waiver of the transcript requirements C. Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust (Bishops) The Bishops appeal the HO's approval of the plan amendment to address the issues summarized below: 1. Because the surface mining activities were not in conjunction with an irrigation district, KCDG must obtain a zone change to allow for surface mining. 2. TID is not an applicant and cannot be bound by a decision to add the KCDG property to the non-significant inventory. 3. The non-significant inventory is invalid because only significant Goal 5 mineral and aggregate resources can be surface mined. A. If a specific application is denied on its merits, reapplication for substantially the same proposal may be made at any time after the date of the final decision denying the initial application. 5 A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; 2. Adequacy of transportation access to the site; and 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). (emphasis added) 6 In its notice of appeal for the plan amendment, COLW did not request a specific type of appeal proceeding (de novo, limited de novo, or on -the -record). BOCC Memo Re: Appeals of KCDG Page 3 of 7 4. The plan amendment requires a Goal 5 analysis. 5. The plan amendment is inconsistent with Statewide Planning Goal 2. 6. The approval of the plan amendment is inconsistent with the denial of surface mining. 7. Adding the property to the non-significant inventory would violate the Wildlife Area Combining Zone prohibition on recreational facilities .7 8. Approval of the plan amendment will not fully resolve existing land use violations, nor cure state law violations, by KCDG. 9. The lakes should be fully remediated and reclaimed. The Bishops request the appeal fee be split between all appellants; an on -the -record review of the appeal; a waiver of the transcript requirement; and that the appeal hearing not be conducted during the week of March 26-30 due to previous commitments for their lawyer. IV. SKI LAKE / SUBDIVISION / APPEALS In the RR10 Zone, a conditional use permit is required to establish a recreation -oriented facility pursuant to DCC 18.60.030(G). G. Recreation oriented facility requiring large acreage such as off road vehicle track or race track, but not including a rodeo grounds. As noted previously, the HO denied the application to allow surface mining in conjunction with an irrigation district. Because surface mining was necessary to create the lakes, the ROF was also denied. Additionally, the HO denied the ROF because the pre-existing slopes associated with the reclaimed mining pit were altered to such an extent to create the south lake, that the south lake is not compatible with the subject property. With respect to the proposed 10 -lot subdivision, the HO found the applicant met all of the required approval criteria and approved the subdivision. In response to the HO's decision, three appeals were filed and are detailed below. A. KCDG KCDG appeals the HO's denial of the ROF to address the issues summarized below. 1. The HO incorrectly interpreted the definition of surface mining to remove the exception for on-site construction. 2. The HO applied criteria requiring a "harmonious" site plan design, and "suitability" and "compatibility" incorrectly. 3. The HO incorrectly denied the application because the ROF does not look natural and is not harmonious with the natural features of the property. 7 B. The following uses are not permitted in that portion of the WA Zone designated as deer winter ranges, significant elk habitat or antelope range: 6. Playground, recreation facility or community center owned and operated by a government agency or a nonprofit community organization; BOCC Memo Re: Appeals of KCDG Page 4 of 7 4. The HO impermissibly applied the conditional use criteria in a way that results in a Goal 5 resource protection program — which is achieved via the Wildlife Area Combining Zone. 5. The proposed revegetation of disturbed areas and the Wildlife Habitat Management Plan address suitability with respect to natural features. 6. The site's physical characteristics as a former surface mine make it suitable for an ROF. 7. The HO misapplies the site plan criteria to the ROF use rather than limiting the criteria to the development of the land. 8. Because the visual impacts are minimized and natural features are preserved, the HO erred in finding the ROF does not relate harmoniously to the site. 9. The HO erred in finding the scale, intensity and duration of the ROF was not harmonious with existing development in the area. 10. The HO erred in relying on the surface mining denial to deny the ROF. 11. The HO erred in finding that private surface mining is prohibited by the RR10 Zone. 12. The HO decision effectively precludes KCDG's ability to refile a denied land use application, which is in violation of DCC 22.28.040. In its notice of appeal, KCDG requests a de novo review; tolls the 150 -day land use clock to June 30, 2018; and requests a waiver of the transcript requirement pursuant to DCC 22.32.024(D). B. COLW COLW appeals the HO's approval of the 10 -lot subdivision to address the issues summarized below. 1. Because the HO found that private surface mining is not allowed in the RR10 Zone, this violation precludes the ability of the subdivision to be approved pursuant to DCC 22.20.015.$ 2. Because construction for the development has proceeded in phases, with the construction of the lakes as the first phase, the development can only be approved as a cluster subdivision. 3. The site must be returned to its pre -disturbance condition before any meaningful analysis of development can occur. 4. Because the subdivision could not be approved under DCC 22.20.015, a full refund of the appeal fee is requested. 8 A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments; D. A permit or other approval, including building permit applications, may be authorized if: 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement; 2. It is necessary to protect the public health or safety; 3. It is for work related to and within a valid easement over, on, or under the affected property; or 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic. BOCC Memo Re: Appeals of KCDG Page 5 of 7 5. Should the BOCC not conduct a review of the appeal, the County cannot charge COLW an appeal fee per ORS 215.422(1)(c).9 COLW requests that the appeal fee be split between all appellants. COLW also requests an on - the -record review and a waiver of the transcript requirement. C. Bishops The Bishops appeal the approval of the 10 -lot subdivision to address the issues summarized below. 1. Per DCC 22.20.015, the subdivision application cannot be approved because it does resolve on-site land use violations. 2. The development should be properly reviewed as a cluster subdivision subject to DCC 18.128.200 because it is a phased development. 3. Reliance on the Wildlife Habitat Management Plan is misplaced because the analysis begins from the perspective of already -constructed lakes. 4. Analysis of the development should include at least 19 houses, and not be limited to the 10 lots proposed as part of the subdivision. 5. The subdivision is incompatible with the character of the surrounding area. 6. The County must consider multiple sections of the Comprehensive Plan as part of its review. 7. The„ westerly road was constructed in 2014 and, therefore, the houses along the "westerly” road cannot comply with the requirement that houses be sited within 300 feet of a road that existed prior to August 5, 1992. 8. A proposed access road crosses Tax lot 822 and the Hammock property; neither of which are a part of the subdivision property. For this reason, the access road does not satisfy DCC 17.16.105.10 9. The HO erred in failing to analyze the new private roads for consistency with the rural character of the area. 10. The HO decision must be corrected to address numerous factual errors. 9 215.422 Review of decision of hearings officer or other authority; notice of appeal; fees; appeal of final decision. (1) (c) The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. In lieu of a transcript prepared by the governing body and the fee therefor, the governing body shall allow any party to an appeal proceeding held on the record to prepare a transcript of relevant portions of the proceedings conducted at a lower level at the party's own expense. If an appellant prevails at a hearing or on appeal, the transcript fee shall be refunded. 90 17.16.105. Access to Subdivisions. No proposed subdivision shall be approved unless it would be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. BOCC Memo Re: Appeals of KCDG Page 6 of 7 The Bishops request the appeal fee be split between all appellants; an on -the -record review of the appeal; a waiver of the transcript requirement; and that the appeal hearing not be conducted during the week of March 26-30 due to previous commitments for their lawyer. V. 150 -DAY LAND USE CLOCK The 150'h -day ends on March 5, 2018. As noted above, the applicants agree to toll the clock to June 30, 2018. ATTACHMENTS 1. Aerial Photograph 2. Site Plan & Tentative Plan 3. HO decision on the Plan Amendment & Surface Mining 4. HO decision on the Recreation -Oriented Facility and 10 -Lot Subdivision 5. KCDG Surface Mining Appeal 6. COLW Plan Amendment Appeal 7. Bishops Plan Amendment Appeal 8. KCDG Recreation -Oriented Facility Appeal 9. COLW Subdivision Appeal 10. Bishops Subdivision Appeal BOCC Memo Re: Appeals of KCDG Page 7 of 7 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: February 23, 2018 TO: Board of County Commissioners (BOCC) FROM: Anthony Raguine, Senior Planner RE: Appeals of KCDG and Tanager Surface Mining, Plan Amendment, Recreation - Oriented Facility and Subdivision projects; Land Use File Nos. 247 -17 -00627 -CU, 629 -PA, 636 -CU, 637 -TP, 639 -CU, 640 -SP, and 641 -LM I. BACKGROUND The applicants, KC Development Group, LLC and Tanager Development, LLC (hereafter "KCDG"), applied for land use approval for two projects. • Land use file nos. 247 -17 -0000627 -CU and 629 -PA were for surface mining in conjunction with an Irrigation District and an amendment to add the subject property to the "Non - Significant Mining Mineral and Aggregate Inventory" (Table 5.8.2) in the Deschutes County Comprehensive Plan. Land use file nos. 247-17- 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM were for a recreation -oriented facility' (ROF) and 10 -lot subdivision. The Deschutes County Hearings Officer (HO) rendered decisions on both projects. II. PLAN AMENDMENT & SURFACE MINING In the Rural Residential (RR10) Zone, a conditional use permit is required pursuant to Deschutes County Code (DCC) 18.60.030(W) for the following use: W. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off- site use, storage, and sale of excavated material. t The ROF consists of a north lake and a south lake. The north lake is proposed for passive recreation, with the south lake designed for water skiing. Quality Services Performed with Pride Per DCC 18.128.280(D)(2), surface mining of the subject property can only occur if the property is included on the County's "Non -Significant Mining Mineral and Aggregate Inventory."2 The HO found the applicant met all the requirements to have the property included on the non-significant inventory and approved the plan amendment. However, the HO found that the relationship between KCDG and Tumalo Irrigation District (TID) did not exist at the time the surface mining activities occurred, and does not exist today. For these reasons, the HO determined that the surface mining activities could not have been in conjunction with an irrigation district. Therefore, the conditional use permit for surface mining was denied. Itl. SURFACE MINING / PLAN AMENDMENT / APPEALS In response to the HO decision on the surface mining and plan amendment project, three appeals were filed and are described below. A. KCDG KCDG appeals the HO's denial of the surface mining application to address the issues summarized below: 1. The HO incorrectly interpreted the definition of surface mining, which could have broader implications for grading and excavation associated with construction activities. 2. The HO incorrectly applied the legal principles of issue and claim preclusion to the decision. 3. If the surface mining was not conducted in conjunction with an irrigation district, then the grading and excavation to create the lakes are exempt from the definition of surface mining as "on-site construction.113 4. The HO erred in finding that ORS 517.780 preempts the County's definition of "surface mining." 5. The HO decision effectively precludes KCDG's ability to refile a denied land use application, which is in violation of DCC 22.28.040.4 2 The subject property was previously known as Surface Mining Site No. 294. In 2007, the county determined the site was fully mined and reclaimed, and approved a re -zone of the property from Surface Mining to RR10. For this reason, any surface mining of the property is subject to the criteria for non-significant mineral sites under DCC 18.128.280. 3 "Surface mining" means A. Includes: 1. All or any part of the process of mining by removal of the overburden and extraction of natural mineral deposits thereby exposed by any method including, open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off site borrow pits, except those constructed for access roads; and 2. Mining which involves more than 1,000 cubic yards of material or excavation prior to mining of a surface area of more than one acre. B. Does not include: 1. The construction of adjacent or off site borrow pits which are used for access roads to the surface mine; 2. Excavation and crushing of sand, gravel, clay, rock or other similar materials conducted by a landowner, contractor or tenant on the landowner's property for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on site road construction and other on site construction, or nonsurface impacts of underground mines; and 3. Batching and blending of mineral and aggregate into asphaltic concrete or portland cement concrete. (emphasis added) 4 22.28.040. Reapplication Limited. BOCC Memo Re: Appeals of KCDG Page 2 of 7 6. The HO erred by not addressing the applicant's legal arguments related to issue and claim preclusion. 7. The HO misconstrued DCC 18.128.015(A) and (B) to require that structures appear natura1.5 In its notice of appeal, KCDG requests a de novo review; tolls the 150 -day land use clock to June 30, 2018; and requests a waiver of the transcript requirement pursuant to DCC 22.32.024(D). B. Central Oregon Landwatch (COLW) COLW appeals the HO's approval of the plan amendment to address the issues summarized below: 1. OAR 660-023-0000 do not allow surface mining of non-significant sites. 2. The HO erred by assuming the County intended for new sites to be added to the non- significant inventory. 3. The plan amendment requires a Goal 5 analysis. 4. The County cannot approve an application for land use development if the property is in violation of land use regulations. 5. The original topography of the reclaimed surface mining pit should be restored. COLW requests that the appeal fee be split between all appellants. COLW also requests a waiver of the transcript requirement.' C. Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust (Bishops) The Bishops appeal the HO's approval of the plan amendment to address the issues summarized below: 1. Because the surface mining activities were not in conjunction with an irrigation district, KCDG must obtain a zone change to allow for surface mining. 2. TID is not an applicant and cannot be bound by a decision to add the KCDG property to the non-significant inventory. 3. The non-significant inventory is invalid because only significant Goal 5 mineral and aggregate resources can be surface mined. A. if a specific application is denied on its merits, reapplication for substantially the same proposal may be made at any time after the date of the final decision denying the initial application. 5 A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; 2. Adequacy of transportation access to the site; and 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). (emphasis added) 6 In its notice of appeal for the plan amendment, COLW did not request a specific type of appeal proceeding (de novo, limited de novo, or on -the -record). BOCC Memo Re: Appeals of KCDG Page 3 of 7 4. The plan amendment requires a Goal 5 analysis. 5. The plan amendment is inconsistent with Statewide Planning Goal 2. 6. The approval of the plan amendment is inconsistent with the denial of surface mining. 7. Adding the property to the non-significant inventory would violate the Wildlife Area Combining Zone prohibition on recreational facilities.' 8. Approval of the plan amendment will not fully resolve existing land use violations, nor cure state law violations, by KCDG. 9. The lakes should be fully remediated and reclaimed. The Bishops request the appeal fee be split between all appellants; an on -the -record review of the appeal; a waiver of the transcript requirement; and that the appeal hearing not be conducted during the week of March 26-30 due to previous commitments for their lawyer. IV. SKI LAKE / SUBDIVISION / APPEALS In the RR10 Zone, a conditional use permit is required to establish a recreation -oriented facility pursuant to DCC 18.60.030(G). G. Recreation oriented facility requiring large acreage such as off road vehicle track or race track, but not including a rodeo grounds. As noted previously, the HO denied the application to allow surface mining in conjunction with an irrigation district. Because surface mining was necessary to create the lakes, the ROF was also denied. Additionally, the HO denied the ROF because the pre-existing slopes associated with the reclaimed mining pit were altered to such an extent to create the south lake, that the south lake is not compatible with the subject property. With respect to the proposed 10 -lot subdivision, the HO found the applicant met all of the required approval criteria and approved the subdivision. In response to the HO's decision, three appeals were filed and are detailed below. A. KCDG KCDG appeals the HO's denial of the ROF to address the issues summarized below. 1. The HO incorrectly interpreted the definition of surface mining to remove the exception for on-site construction. 2. The HO applied criteria requiring a "harmonious" site plan design, and "suitability" and "compatibility" incorrectly. 3. The HO incorrectly denied the application because the ROF does not look natural and is not harmonious with the natural features of the property. 7 B. The following uses are not permitted in that portion of the WA Zone designated as deer winter ranges, significant elk habitat or antelope range: 6. Playground, recreation facility or community center owned and operated by a government agency or a nonprofit community organization; BOCC Memo Re: Appeals of KCDG Page 4 of 7 4. The HO impermissibly applied the conditional use criteria in a way that results in a Goal 5 resource protection program — which is achieved via the Wildlife Area Combining Zone. 5. The proposed revegetation of disturbed areas and the Wildlife Habitat Management Plan address suitability with respect to natural features. 6. The site's physical characteristics as a former surface mine make it suitable for an ROF. 7. The HO misapplies the site plan criteria to the ROF use rather than limiting the criteria to the development of the land. 8. Because the visual impacts are minimized and natural features are preserved, the HO erred in finding the ROF does not relate harmoniously to the site. 9. The HO erred in finding the scale, intensity and duration of the ROF was not harmonious with existing development in the area. 10. The HO erred in relying on the surface mining denial to deny the ROF. 11. The HO erred in finding that private surface mining is prohibited by the RR10 Zone. 12. The HO decision effectively precludes KCDG's ability to refile a denied land use application, which is in violation of DCC 22.28.040. In its notice of appeal, KCDG requests a de novo review; tolls the 150 -day land use clock to June 30, 2018; and requests a waiver of the transcript requirement pursuant to DCC 22.32.024(D). B. COLW COLW appeals the HO's approval of the 10 -lot subdivision to address the issues summarized below. 1. Because the HO found that private surface mining is not allowed in the RR10 Zone, this violation precludes the ability of the subdivision to be approved pursuant to DCC 22.20.015.8 2. Because construction for the development has proceeded in phases, with the construction of the lakes as the first phase, the development can only be approved as a cluster subdivision. 3. The site must be returned to its pre -disturbance condition before any meaningful analysis of development can occur. 4. Because the subdivision could not be approved under DCC 22.20.015, a full refund of the appeal fee is requested. 8 A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments; D. A permit or other approval, including building permit applications, may be authorized if: 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement; 2. It is necessary to protect the public health or safety; 3. It is for work related to and within a valid easement over, on, or under the affected property; or 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic. BOCC Memo Re: Appeals of KCDG Page 5 of 7 5. Should the BOCC not conduct a review of the appeal, the County cannot charge COLW an appeal fee per ORS 215.422(1)(c).9 COLW requests that the appeal fee be split between all appellants. COLW also requests an on - the -record review and a waiver of the transcript requirement. C. Bishops The Bishops appeal the approval of the 10 -lot subdivision to address the issues summarized below. 1. Per DCC 22.20.015, the subdivision application cannot be approved because it does resolve on-site land use violations. 2. The development should be properly reviewed as a cluster subdivision subject to DCC 18.128.200 because it is a phased development. 3. Reliance on the Wildlife Habitat Management Plan is misplaced because the analysis begins from the perspective of already -constructed lakes. 4. Analysis of the development should include at least 19 houses, and not be limited to the 10 lots proposed as part of the subdivision. 5. The subdivision is incompatible with the character of the surrounding area. 6. The County must consider multiple sections of the Comprehensive Plan as part of its review. 7. The "westerly" road was constructed in 2014 and, therefore, the houses along the "westerly" road cannot comply with the requirement that houses be sited within 300 feet of a road that existed prior to August 5, 1992. 8. A proposed access road crosses Tax lot 822 and the Hammock property; neither of which are a part of the subdivision property. For this reason, the access road does not satisfy DCC 17.16.105.10 9. The HO erred in failing to analyze the new private roads for consistency with the rural character of the area. 10. The HO decision must be corrected to address numerous factual errors. 9 215.422 Review of decision of hearings officer or other authority; notice of appeal; fees; appeal of final decision. (1) (c) The governing body may prescribe, by ordinance or regulation, fees to defray the costs incurred in acting upon an appeal from a hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript. The governing body may establish a fee for the preparation of a written transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to $500. In lieu of a transcript prepared by the governing body and the fee therefor, the governing body shall allow any party to an appeal proceeding held on the record to prepare a transcript of relevant portions of the proceedings conducted at a lower level at the party's own expense. If an appellant prevails at a hearing or on appeal, the transcript fee shall be refunded. 10 17.16.105. Access to Subdivisions. No proposed subdivision shall be approved unless it would be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision would have direct access to an improved collector or arterial or in cases where the subdivision has no direct access to such a collector or arterial, by demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. BOCC Memo Re: Appeals of KCDG Page 6 of 7 The Bishops request the appeal fee be split between all appellants; an on -the -record review of the appeal; a waiver of the transcript requirement; and that the appeal hearing not be conducted during the week of March 26-30 due to previous commitments for their lawyer. V. 150 -DAY LAND USE CLOCK The 150th -day ends on March 5, 2018. As noted above, the applicants agree to toll the clock to June 30, 2018. ATTACHMENTS 1. Aerial Photograph 2. Site Plan & Tentative Plan 3. HO decision on the Plan Amendment & Surface Mining 4. HO decision on the Recreation -Oriented Facility and 10 -Lot Subdivision 5. KCDG Surface Mining Appeal 6. COLW Plan Amendment Appeal 7. Bishops Plan Amendment Appeal 8. KCDG Recreation -Oriented Facility Appeal 9. COLW Subdivision Appeal 10. Bishops Subdivision Appeal BOCC Memo Re: Appeals of KCDG Page 7 of 7 O -13 Z v Nt tc,�=mrj'Amnoo 83inHO93C] L WZ/OZ/L v4.m 3 Lt 4 '13 U I'K T CL qNOII03S NI 03IV301owy 4, Wd 3115 'crn'd T— VOIA band O -13 Z v Nt 4, DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -17 -000627 -CU, 629 -PA HEARING DATE: October 23, 2017, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97701 PROPOSAL: Application for a Conditional Use Permit for surface mining of non - goal 5 mineral and aggregate resources. The applicant also requests a quasi-judicial plan amendment to add the subject property to Table 5.8.2 of the Deschutes County Comprehensive Plan, the "Non -Significant Mining Mineral and Aggregate Inventory" APPLICANT/ OWNER: KC Development Group, LLC APPLICANT'S ATTORNEY: Ken Katzaroff KC Development Group, LLC 63560 Johnson Road Bend, OR 97703 STAFF: Anthony Raguine, Senior Planner HEARINGS OFFICER SITE VISIT: October 26, 2017' RECORD CLOSED: December 4, 2017 I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.04, Definitions Chapter 18.56, Surface Mining Impact Area Combining Zone — SMIA Chapter 18.60, Rural Residential Zone — RR10 Chapter 18.84, Landscape Management Combining Zone — LM Zone Chapter 18.88, Wildlife Area Combining Zone — WA Zone Chapter 18.116, Supplementary Provisions Chapter 18.128, Conditional Use The Bishops objected to the timing of the site visit report, which occurred on November 7, 2017. They requested that the record be left open to "rebut' the report. The Hearings Officer is not a party to the appeals and not bound by the record timelines established at the hearing. No new "evidence" is presented in the site visit report. The request is denied. Title 22, Deschutes County Development Procedures Ordinance OAR -660-023-0250, Procedures and Requirements for Complying with Goal 5 Deschutes County Comprehensive Plan II. BASIC FINDINGS: A. LOCATION: The subject property includes the following properties described below: 1. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820 2. 63305 Palla Lane; Assessor map 17-11-13, tax lot 824 3. 19210 Klippel Road; Assessor map 17-11-13, tax lot 828 B. ZONING: The subject property is zoned Rural Residential (RR10) and is within the Wildlife Area (WA) Combining Zone protecting the Tumalo Deer Winter Range. A portion of the property is located within the Landscape Management (LM) Combining Zone associated with Tumalo Creek to the east. Portions of the property are located in a Surface Mining Impact Area (SMIA) Zone due to the property's proximity to Surface Mine Site 293 (17-11-12, tax lots 600, 700 and 800)2. The property is designated Rural Residential Exception Area (RREA) on the Deschutes County Comprehensive Plan map. C. LOT OF RECORD: The subject property is comprised of legal lots of record pursuant to lot of record determination LR -05-8. The boundaries of the legal lots of record have been modified to their current configuration through numerous property line adjustments including LL -08-76, LL -11-17, LL -11-18, LL -13-46, LL - 13 -47, LL -13-48, LL -13-49, LL -13-51, and LL -13-52. D. SITE DESCRIPTION: The property is approximately 88 acres in size and is irregular in shape. Tax lots 824 and 828 were the site of the Klippel Surface Mine (former Surface Mine Site 294) previously zoned Surface Mining (SM). When mining and reclamation of Site 294 was completed, the mine was rezoned to RR10. The property has approximately 55 acres of groundwater irrigation water rights administered by the Tumalo Irrigation District (TID). The property is now developed with two man-made, lined reservoirs filled with water. The applicant performed this work in 2014 on two surface mining pits to re -grade and re -contour the pits. It erroneously believed at that time that the work was exempt from permitting requirements. Primary access to the property is from a private driveway connecting to Johnson Road. There is also a "ditch rider" road near the west boundary on the property that provides access to TID irrigation facilities. The smaller of the two reservoirs (North Reservoir) is located in the northeastern portion of tax lot 828 and the western portion of tax lot 820, is round in shape, and has a capacity of approximately 57 acre-feet of water. The North Reservoir has been improved with two boat ramps, one at each end, and is proposed in a 2 The surface mine known as the Cake Pit, to the east, is governed by Title 19, which does not include a SMIA Combining Zone. Therefore, no portion of the property is burdened by a SMIA Zone associated with the Cake Pit. 2 separate application to be used for passive recreation including swimming and non -motorized boating. The larger reservoir (South Reservoir) is located on tax lots 824 and 828 and has a capacity of approximately 68 acre-feet of water. The South Reservoir is long and narrow and has two round man-made gravel and dirt islands, one at each end, to facilitate waterskiing. At its north end, the South Reservoir has a small harbor consisting of a boat ramp, dock, and pilings to support three proposed boat garages. Near the southern end of the South Reservoir are a weir and a head gate that could operate to regulate the flow of water from TID's piped irrigation canal (Tumalo Feed Canal) into the South Reservoir. The undeveloped portion of the property has a vegetative cover of scattered pine and juniper trees and native brush and grasses. The area immediately surrounding both Reservoirs is devoid of vegetation. After the subject property was mined and reclaimed, it was rezoned to RR10. Reclamation included grading, re -contouring and re -seeding with pasture grasses to prevent erosion. As the Board of County Commissioners found in its April 8, 2015 decision on the appeals of Land Use file numbers 247 -14 -000238 -PS, -000274-A, -000452-A and -000453-A (Document no. 2015-221): "The numerous aerial and ground level photographs in the record show the new reservoirs bear little if any resemblance to the reclaimed and reseeded mining pits that existed at the time of rezoning. The evidence in the record indicates the pits have been converted to reservoirs within the past 12 to 18 months by excavating a large volume of aggregate and grading the area to create impoundments, building islands at each end of the southern reservoir, creating a dock area and boat ramp, lining both reservoirs with an impermeable fabric and affixing that fabric to the ground with an overlay of sand and gravel." It is this surface mining work for which the applicant requests after -the fact permits in this proceeding. E. PROPOSAL: The applicant requests after -the -fact conditional use permit for surface mining of non -goal 5 mineral and aggregate resources conducted to create two reservoirs on the subject property. The applicant also requests a quasi-judicial plan amendment to add the subject property to Table 5.8.2 of the Deschutes County Comprehensive Plan, the "Non -Significant Mining Mineral and Aggregate Inventory." There are separate applications for a recreation -oriented facility and planned development that are related, but not addressed in this Final Decision .3 F. SURROUNDING LAND USE: The subject property is adjacent to the Klippel Acres Subdivision which is zoned RR10 and WA and developed with rural residences. Tumalo Creek adjoins the property to the east along tax lots 601, 825, 826 and 827. To the west is Johnson Road and the Saddleback Subdivision zoned RR10 and WA and developed with rural residences. Also to the west is TID's piped 31 -and use file numbers 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP, and -641-LM. 3 Tumalo Feed Canal and the associated ditch rider road. Two active surface mines are located within a quarter mile of the subject property. Approximately 1,700 feet to the north is SM Site 293. Approximately 350 feet to the east is SM Site 308, known as the Cake Pit. Land zoned Exclusive Farm Use (EFU) is located to the north and is engaged in small-scale farming consisting of hay production and livestock grazing on irrigated pasture. To the northwest are lands zoned Forest Use (F2) that are primarily undeveloped. Aerial photographs provided in the county's GIS show surrounding land is characterized by a moderate to dense tree cover as well as more open pasture areas. G. PUBLIC AGENCY COMMENTS: The following comments were received from public agencies. Deschutes County Code Enforcement. After reviewing each of the properties listed [in the Notice of Application], I can confirm that there are no pending code enforcement cases at this time.4 Oregon Department of Fish and Wildlife.5 The purpose of this letter is to provide Oregon Department of Fish and Wildlife (Department) comments on the conditional use application from KC Development Group (KCDG) to establish a recreational facility (water ski lake) and 10 -lot subdivision on 104.68 acres. The Department is mandated by State Statute to manage fish and wildlife resources to prevent serious depletion of indigenous species and to provide optimum recreational and aesthetic benefits for present and future generations of the citizens of Oregon (ORS 496.012). Department comments on previous land use applications for this property can be found in letters dated June 29, 2015 and September 17, 2015. As stated in these letters, the property for which the KCDG has submitted an application is within the Deschutes County Wildlife Area Combining Zone as well as the Tumalo Deer Winter Range. Deer and other wildlife in this area are particularly vulnerable to human disturbance during the winter when food resources are scarce and temperatures are often below freezing. Thus, the concerns that the Department outlined previously in the above letters still exist. In addition, under the Department's Fish and Wildlife Habitat Mitigation Policy (OAR 635-415), deer/big game winter range is classified as Category 2. Category 2 habitat is defined as "essential and limited" and its loss should be mitigated with a goal of providing "no net loss of habitat quantity or quality and to provide a net benefit of habitat quantity or quality". 4 In June of 2016, TID and KCDG informed the county the agreement between TID and KCDG to use the reservoirs for irrigation district purposes was terminated. KCDG also agreed to cease motorized boating activity. The county closed the code enforcement case on the property. 5 The Hearings Officer notes that ODFW's comments appear to pertain to the concurrent applications for a recreation -oriented facility and planned unit development, reviewed separately under Land use file numbers 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP and 641-1-M. However, because ODFW referenced the applications in the subject decision, the agency's comments are set forth herein. 4 The Department has reviewed the application materials including the Burden of Proof, Wildlife Habitat Management Plan (WHMP) and the Declaration of Protective Covenants, Conditions, and Restrictions (CC&Rs) and has the following comments: • In keeping with the Mitigation Policy, the Department requests that KCDG develop an off-site mitigation plan to compensate for the loss of winter range at a ratio of 3:1. An example of an appropriate mitigation strategy would be to work with the Forest Service to improve 314 acres of winter range habitat in proximity to KCDG's property. • Section 4.2.6 of CC&Rs under LOTS AND HOMES should be amended to state that all fencing must comply with the fencing standards in Deschutes County Code 18.88.060. • Section 4.5 of CC&Rs under LOTS AND HOMES should be amended to state that native landscaping should be >50% of each residential lot. In addition, Exhibit AA (Landscape Plan) should be amended to deemphasize the use of turf around homes. • Section 4.10 of CC&Rs under LOTS AND HOMES should be amended to state that allowing domestic animals to harass wildlife is prohibited. • Section 5.2 of CC&Rs under OPEN SPACE should be amended to state that domestic animals in the Open Space shall be leashed. • The Department is concerned about the applicant's proposal to move topsoil from portions of the area preserved as Open Space for wildlife. The stated purpose is for rehabilitating the area around the South Pond but this action has the potential to disturb a large portion of wildlife habitat that may succumb to noxious weeds such as cheatgrass even if reseeded with native plants. The Department recommends that the applicant obtain topsoil for the South Pond from outside the property. • The educational program referenced in the WHMP for residents and guests of the Tanager Planned Development about wildlife and habitat maintenance should be presented to the Department for review prior to finalization. • Regarding monitoring of the effectiveness of the WHMP: ➢ The Department recommends that the language in section 1.5.2 of the Easement and Maintenance Agreement read as follows "The Administrator shall hire a professional biologist to conduct an audit of the compliance with the Wildlife Habitat Management Plan". ➢ The party implementing the wildlife habitat conservation measures (i.e. Tanager Development L.L.C. or subsequent administrator) should submit results of audit of compliance to the Department for review. • Finally, as this development will be occurring in deer winter range there will likely be conflicts between wildlife and the residents of subdivision. According to the Department's Wildlife Damage Policy (2008), the Department may deny assistance for control of damage if a "landowner created the wildlife conflict situation through a categorical change in the use of the land since 1987 in recognized significant wildlife habitat". Thus, the Department will not respond to future wildlife damage complaints from residents of the subdivision. No comments were received from the following agencies. Deschutes County Building Division, Deschutes County Environmental Soils Division, Deschutes 5 County Senior Transportation Planner, Deschutes County Road Department, Deschutes County Property Address Coordinator, Bend Fire Department, Oregon Department of Geology and Mineral Industries, Tumalo Irrigation District, and Watermaster — District 11. No comments were received from the following agencies. Deschutes County Building Division, Deschutes County Environmental Soils Division, Deschutes County Senior Transportation Planner, Deschutes County Road Department, Deschutes County Property Address Coordinator, Bend Fire Department, Oregon Department of Geology and Mineral Industries, Tumalo Irrigation District, and Watermaster — District 11. H. PUBLIC COMMENTS: The Planning Division sent notice of this application to property owners within 250 feet of the subject property. In addition, the applicant submitted a Land Use Sign Affidavit indicating the land use action sign was posted on the property on September 6, 2017. A number of emails and letters were received in response to the mailed and posted notices. Public comment was also taken at the hearing on the applications and in the open record period following the public hearing, which closed on December 4, 2018. Because many of the correspondences did not specify which file numbers the comments were directed to, a summary of all comments received for this application and the concurrent applications to establish the ROF and PUD are set forth herein. Support • Design takes into consideration open space, flora, fauna, water needs, firefighting needs, and neighboring properties Beautification and appropriate re -use of mining pits No use of public or irrigation district funds to construct Model for private/public partnerships Increased wildlife presence in and around both reservoirs Integrity of the applicants Sound study proves noise impacts will be minimal Noise from vehicles on Johnson Road, nearby surface mining activities, and airplanes are louder than the noise generated from ski boats Protection of private property rights Residential development will provide additional buffering from nearby surface mining activities Opposition TID is not an applicant and the reservoirs were not built for the purpose of re -regulation Both reservoirs and the westerly roads were built without proper land use approval Noise impacts from water skiing activity 6 The westerly road was constructed pursuant to temporary use permit TU -14-8 which allowed rock crushing on the subject property in association with private road maintenance and landscaping. 0 New private roads in a rural setting, specifically the proposed new access from Buck Drive across the Hammack property to the project Negative impact to property values Danger to children due to new roads and traffic, and the ski lake Loss of trees and habitat Impact to wildlife Inappropriate intensity and density of development in a rural setting Presence of gnats due to proximity of both reservoirs Increased water evaporation due to large surface area of reservoirs Applications cannot be processed because they will not cure the previous unpermitted construction activity Applications cannot be processed because of open code enforcement cases on the subject property Ski lake is an inappropriate use of water in a desert environment Proposed residences may conflict with existing surface mining activity With respect to the opposition's comments, the following alleged concerns are not addressed to any applicable standard of review and/or are unsupported by competent and non -speculative evidence, and/or misapply applicable law: 1. New private roads are inconsistent with rural setting 2. Negative impacts to property values 3. Danger to children 4. Presence of gnats 5. Increased water evaporation 6. Open code enforcement cases (no evidence) 7. Applications cannot be processed because they will not cure previously unpermitted construction The Hearings Officer addresses the comments tied to applicable criteria in the Decision below. The alleged concerns addressing use of the south reservoir as a ski lake and use of the north reservoir for passive recreation are addressed in the separate Final Decision on Land Use file numbers 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP, and -641-LM. LAND USE HISTORY: The land use history of the subject property is extensive. The Hearings Officer (HO) in the "Land Use/Code Enforcement History" section of her decision for land use file numbers 247 -15 -000226 -CU, 247 -15 -000227 -CU, 247 -15 -000228 -LM, 247 -15 -000383 -MA, 247 -15 -000384 -SP, and 247-15- 000385-V (hereafter referred to as 'Ski Lake I') provided a chronology and context for the subject property. This history is incorporated into this Hearing Officer's Decision: Klippel Surface Mine. The record indicates former SM Site 294 was fully mined and reclaimed, and received reclamation approval from the Oregon Department of Geology and Mineral Industries (DOGAMI) on September 27, 2005. In May of 2007, Harris Kimble applied for a plan amendment, zone change and goal exception to redesignate SM Site 294 from Surface Mining and Agriculture to RREA, and to rezone the site from SM and Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-TRB) to RR - 10. In a decision dated November 8. 2007, this Hearings Officer approved 7 the plan amendment, zone change and goal exception (PA -07-2, ZC-07- 2). In my decision, 1 described the rezoned property as follows: "The subject property is approximately 160 acres in size and very irregular in shape. A significant portion of the property has been disturbed due to previous surface mining and reclamation activities. The disturbed area consists of reclaimed extraction pits and berms created from overburden removed from the extraction sites. The undisturbed portions of the property have varying topography and a mixture of native vegetation including scattered stands of pine and juniper trees, as well as native brush and grasses, and pasture grasses seeded as part of the surface mine reclamation. Part of the eastern border of the subject property is located in the canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record indicates the subject property has 58.91 acres of irrigation water rights administered by TID .... The record indicates some of these water rights currently are leased for in - stream use. There is a small irrigation ditch that traverses the subject property within an easement. " 2013. KC Development Group (hereafter "KCDG') purchased the majority of the subject property in October of 2013. On October 8, 2013, staff from the county's Community Development Department (CDD) met with representatives of KCDG and their then -attorney Tia Lewis to discuss development of the subject property with a residential cluster development. No development proposal was submitted at that time. 2014. On March 18 and 19, 2014, CDD received three code violation complaints alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and use of a private road were occurring on the subject property without required land use approval. These complaints were investigated by Deschutes County Code Enforcement Technician Tim Grundeman who concluded that no code violations had occurred. KCDG applied for a temporary use permit to allow rock crushing on the subject property in association with private road maintenance and landscaping. On April Z 2014, CDD issued a temporary use permit for such use (TU -14-8). On June 4, 2014, CDD received another code violation complaint related to "unpermitted activities" on the property. On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty, representatives of TID, TID's attorney William Hopp, and TID's and KCDG's attorney Elizabeth Dickson met to discuss the need and process for obtaining a Land Use Compatibility Statement (LUCS) for TID's request to the Oregon Water Resources Department (WRD) for permission to transfer the place of use of TID's water storage right from Upper Tumalo Reservoir to the subject property. Ms. Dickson advised CDD staff that an application for a residential cluster development on the subject property would be submitted in the future, potentially within six months. On or about June 16, 2014, CDD Director Nick Lelack determined to treat any request for a LUCS submitted by TID as a "land use action" and to process it according to the county's procedures therefor. E: On June 11, 2014, TID submitted to WRD an application (T-11833) to transfer the place of use of a portion of TID's water storage right from Upper Tumalo Reservoir to the two reservoirs on the subject property. On June 17, 2014, KCDG submitted applications for a building permit (247- 14-003315-STR) and an electrical permit (247-14-003315-ELEC-01) for a boathouse and boat slip on the southern reservoir. CDD staff advised KCDG that the county could not sign off on the building or electrical permit while any LUCS request was pending. On June 19, 2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the transfer in place of use of its water storage right and TID's belief that the proposed transfer is a use permitted outright in the RR -10 Zone. On July 25, 2014, John Laherty sent a letter to Elizabeth Dickson stating in relevant part: "..JT]o the extent KC Development Group LLC has expended, or intends to expend, resources to create reservoirs, install footings for a dock or boathouse, or otherwise perform work on the subject property that does not [sic] require County approval, it does so at its own risk and without any guarantee that future County permits or approvals — including, without limitation, land use approval for construction of a cluster development or recreational lake, or building division approval for construction of a boat house or dock — will be granted. The County has encouraged KC Development Group LLC and its principals to apply for necessary land use approvals first — before devoting significant resources to improving the property— so as to avoid the risk of commencing projects it will ultimately be unable to complete. Your client has chosen to disregard this advice. Please inform your client (again) that Deschutes County will review any future land -use or building permit application on its own merits, and the County's decision on such application will be governed solely by consideration of appropriate criteria. Your client's decision to expend resources on improvements prior to obtaining necessary County approval for his intended development project will not be given undue weight or consideration in this process." On July 25, 2014, CDD staff and county legal counsel conducted a site visit to the subject property at the request of neighboring property owners. On August 4, 2014, TID submitted its LUCS request on a form provided by WRD. The form stated TID intended to submit to WRD an application for a "water right transfer— storage, "and described the intended use of the water in relevant part as follows: "This is an intra -district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek Water. TID to TID (Storage water). The transfer of this storage water is necessary for the operation and maintenance of our 9 irrigation system, and allowed as an outright use in the RR -10 zone. The current site was built in the 1920's and no longer serves TID's needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Services responders, and provide increased efficiency in the operations and maintenance of the TID system overall." Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck, to Nick Lelack describing the reason for the LUCS request. By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson issued a stop work order to KCDG for work performed on the boathouse foundation on the southern reservoir without a building permit. The previously submitted building and electrical permit applications were withdrawn by KCDG. On August 13, 2014, Mr. Lelack completed and issued the WRD LUCS form by checking the box stating: "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. Cite applicable ordinance section(s):" Mr. Lelack attached to the form a three-page "Notice of Decision" dated August 13, 2014. The decision cited Section 18.60.020(1) listing "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District, " and included the following findings: `According to information provided by Tumalo Irrigation District, TID `has decided to move its Regulation Pond storage to [the Klippel Mining Pit] a site upstream from our current in -district storage at Tumalo Reservoir.' TID states that the existing Reservoir `was designed and built in the 1920's and does not adequately serve TID's needs,' and that the new site `will be a significant upgrade to operations and maintenance.' The Planning Director finds that transferring in -district storage from the Tumalo Reservoir upstream to the Klippel Acres Mining Pit in order to improve the operations of TID's existing irrigation system is a use permitted outright in this zone." On August 22, 2014, opponents Thomas and Dorbina Bishop, Trustees for the Bishop Family Trust (hereafter "Bishops'), filed an appeal from the LUCS. The appeal was referred to this Hearings Officer for hearing. On September 16, 2014, CDD received a code violation complaint for construction of a new road on the subject property. The complaint was again investigated by Tim Grundeman who found no code violation. On September 22, 2014, CDD received a code violation complaint regarding waterskiing occurring on the southern reservoir. On September 25, 2014, TID filed with WRD a notice of intent to change the location of a portion of its water right to the reservoirs on the subject property (T-11951). 10 On October 3, 2014, the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Senior Planner Anthony Raguine. On October 7, 2014, the Hearings Officer held a public hearing on the appeal. At that hearing, the Hearings Officer disclosed her observations and impressions from the site visit. On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a "recreation -oriented facility requiring large acreage" without land use approval. On December 15, 2014, the Hearings Officer issued a final decision on the LUCS appeal, holding in relevant part that. "1. The county incorrectly categorized TID's proposed use on the WRD LUCS form as a use allowed without review. 2. The county erred in issuing a LUCS decision finding TID's proposed use was allowed without review. 3. The county's LUCS decision is reversed and remanded for the CDD Director to reissue the WRD LUCS form and the LUCS decision to categorize TID's proposed use as one involving discretionary land use approval(s) that have not yet been obtained — i.e., the conditional use of surface mining for reservoirs in conjunction with operation and maintenance of irrigation systems under Section 18.60.030(W), and/or a recreation -oriented facility requiring large acreage under Section 18.60.030(G)." Both TID and the Bishops appealed the Hearings Officer's decision to the Deschutes Board of County Commissioners (hereafter "board'). 2015. On January 7, 2015, by Order No. 2015-009, the board accepted the TID's and the Bishops' appeals of the Hearings Officer's LUCS decision and elected to consolidate them into a single de novo proceeding. On January 29, 2015 the board held a public hearing on the appeals. On April 8, 2015, the board issued its decision affirming the Hearings Officer's decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS form and checked the box stating: "Land uses to be served by the proposed water uses (including proposed construction) involve discretionary land use approvals as listed in the table below. (Please see attached documentation of applicable land use approvals which have already been obtained. Record of Action/land use decision and accompanying findings are sufficient.) If approvals have been obtained but all appeal period have not ended, check "Being pursued." (Bold emphasis in original.) The table on the LUCS form listed conditional use permits as required to establish a recreation facility and for surface mining. The board's and the Hearings Officer's decisions were attached to the re -issued LUCS. 11 On April 29, 2015, WRD issued two orders concerning TID's request for permission to transfer the place of use of part of its water right from Upper Tumalo Reservoir to the reservoirs on the subject property. WRD denied TID's application (T-11833) for a temporary transfer in place (Special Order Volume 95, Pages 1018-1025). It also denied TID's request for approval of a permanent transfer in place (Special Order Volume 95, Pages 1026- 1032). The stated reason for WRD's denials was that land use approval was required for the transfer and TID had not obtained it. In May of 2015, KCDG, TID and the Bishops filed appeals with the Land Use Board of Appeals (LUBA) from the board's LUCS decision, and from Nick Lelack's re-issuance of the WRD LUCS form, stating additional land use review was required for the reservoirs. On May 14, 2015, a code violation complaint was filed alleging unpermitted construction on the subject property including piping and concrete work. On May 15, 2015, TID's and KCDG's attorney Ken Katzaroff submitted an affidavit from Robert Varco, TID's Field Supervisor, describing the nature and purpose of the construction work. According to the affidavit, the construction was to replace an existing concrete weir in order to improve TID's existing water delivery system. Mr. Varco stated TID installs approximately 20 new or replacement weirs in its system each year. On May 18, 2015, Senior Planner Anthony Raguine and Code Enforcement Technician John Griley met with Harris Kimble on the subject property to investigate the construction. Based on the investigation and Mr. Varco's affidavit, the county determined this construction work did not require building or electrical permits, and that the work was allowed outright under Section 18.60.020(1) of the Deschutes County Code as the "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District." The code enforcement case was closed. On September 9, 2015, LUBA issued its decision on TID's/KCDG's and the Bishops' appeals from the county's LUCS decisions. Bishop v. Deschutes County, _ Or LUBA _ (LUBA No. 2015-027, 2015-028, and 2015-030; September 9, 2015). TID's/KCDG's appeals included motions to dismiss all appeals, and the Bishops' appeals included a motion to transfer its appeals to the Deschutes County Circuit Court on the basis that LUBA lacked jurisdiction to hear the appeals. In its decision, LUBA held (1) the board correctly found both TID/KCDG and the Planning Director mischaracterized the nature of the use for which the LUCS was requested: (2) the Planning Director did not err in re-issuing the LUCS stating land use approval for the reservoirs was required. (3) LUBA lacked jurisdiction to hear the appeals because they are excluded from LUBA jurisdiction under ORS 197.015(10)(b)(H)(iii);" (4) the Bishops' LUBA appeals were transferred to the Deschutes County Circuit Court based on the Bishops' motion for transfer; and (5) TID's/KCDG's appeals were dismissed because they did not timely file a motion for transfer to the circuit court. On April 29, 2015, KCDG and TID jointly applied for conditional use approval to make lawful previous surface mining that created the two 12 reservoirs on the property along with a variance from the RR10 Zone setbacks to allow the South Reservoir to cross a property line. The applicants also requested conditional use, site plan and landscape management approval to establish a recreation facility requiring large acreage for water-skiing.' 2016. On January 21, 2016, the HO denied the applications for surface mining and the recreation facility. The HO decision was subsequently appealed to the Board of County Commissioners (Board), who declined review (Board Order 2016-010). The Bishops appealed the HO denial to LUBA (LUBA 2016-023). KCDG and TID filed a Joint Motion to Dismiss. Subsequently, the Bishops filed a Motion to Withdraw Notice of Intent to Appeal and Dismiss Appeal. Based on the Bishops' request, LUBA dismissed the appeal. On November 30, 2016, KCDG applied for a LUCSB for "one time fill plus 44 feet per year in mitigation water to be stored in 2 ponds by KC Development Group for landscape aesthetics, emergency fire protection, and temporary pass through irrigation water for personal irrigation use by KC Development Group ("bulge in system')." On December 14, 2016, the county issued the LUCS checking the box marked "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. " Further, the county included the following statement on the LUCS, "The Deschutes County Zoning Code does not regulate the use of water to be stored in 2 ponds for aesthetic landscaping, emergency fire protection, or pass-through irrigation for the property owner. " On December 22, 2016, the Bishops attempted to file a local appeal of LUCS 247 -16 -000748 -PS. On December 30, 2016, the county informed the Bishops that the LUCS decision was a development action which is only appealable by the applicant, his or her representatives, and his or her witnesses, pursuant to DCC 22.32.050. 2017. On January 4, 2017, in response to the county not accepting the Bishops request for appeal of the LUCS, the Bishops filed a Notice of Intent to Appeal (LUBA 2017-002). On the same day, in response to the county issuing the LUCS, the Bishops filed a precautionary Notice of Intent to Appeal (LUBA 2017-003). LUBA consolidated both appeals. In response to the LUBA appeals, the county and KCDG jointly filed a Motion to Dismiss for Lack of Jurisdiction. On March 21, 2017, LUBA denied the motion to dismiss both appeals. ' Land use file numbers 247 -15 -000226 -CU, 227 -CU, 228 -LM, 383 -MA, 384 -SP, 385-V. 8 Land use file number 247 -16 -000748 -PS. 13 On January 10, 2017, KCDG applied for a LUCS' for "Limited license to provide temporary authorization while awaiting Department approval of Groundwater permit application G-18422, authorizing storage of water in two ponds for fire protection, aesthetic and pass through irrigation water." On January 12, 2017, the Bishops attempted to submit materials into the record for LUCS 247 -17 -000016 -PS. On January 18, 2017, Central Oregon Landwatch (COWL) also attempted to submit materials into the record for this LUCS. Via email dated January 31, 2017, the county informed both the Bishops and COWL that the county rejected both submissions and would not consider the materials in making a decision on the LUCS. On February 7, 2017, the county issued the LUCS checking the box marked "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. " Further, the county included the following statement on the LUCS, "The Deschutes County Zoning Code does not regulate the use of water to be stored in 2 ponds for aesthetic landscaping, emergency fire protection, or pass-through irrigation for the property owner. " On February 16, 2017, the Bishops attempted to file a local appeal of LUCS 247 -17 -000016 -PS. On February 17, 2017, the county informed the Bishops that the LUCS decision was a development action which is only appealable by the applicant, his or her representatives, and his or her witnesses, pursuant to DCC 22.32.050. On July 28, 2017, KCDG applied for a Limited Water Use License LUCS10 for "One time fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for private irrigation ("bulge in the system') and for recreation purposes." On the same day, KCDG applied for a separate Permit to Use or Store Water LUCS also for "One time fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for private irrigation ("bulge in the system') and for recreation purposes." On August 17, 2017, the county issued both LUCS forms by checking the box "Land uses to be served by the proposed water uses (including proposed construction) involve discretionary land -use approvals as listed in the table below." In the LUCS table, the county indicated the following land use approvals were being pursued by KCDG: comprehensive plan amendment, tentative plat, conditional use, site plan, lot line adjustments, surface mining impact area review and landscape management review. J. PROCEDURAL HISTORY AND REVIEW PERIOD: The subject applications were submitted on July 28, 2017. The applications were deemed complete on August 25, 2017. The applicant has waived a total of 35 days on the 150 -day time period within which the County must issue a final land use decision on the conditional use 9 Land use file number 247 -17 -000016 -PS. 10 Land use file number 247 -17 -000623 -PS. 14 permit application. Originally, the 150th -day upon which the county must issue a final land use decision on the conditional use permit was January 22, 2018. The new 150th -day for a final land use decision is February 26, 2018. Pursuant to DCC 22.20.040(D)(1), plan amendments are exempt from the 150 -day timeline. CONCLUSIONARY FINDINGS: APPLICANT'S RIGHT TO REQUEST AFTER -THE -FACT APPROVAL OF SURFACE MINING IN THE RR -10 ZONE The Hearings Officer understands that the purpose of the current applications, along with concurrent applications 247 -17 -000636 -CU, -637-TP, -639-CU, -640-SP, and -641-LM, is to legitimize previous reservoir -related work and obtain approval for the contested water ski lake, among other things. The Hearings Officer finds it appropriate to process the applications pursuant to the Procedures Ordinance in DCC Title 22 to determine whether previously unpermitted construction may be approved in order to come into full compliance with all applicable zoning regulations and state and federal law." For the reasons set forth In this Decision, the Hearings Officer determines that, based on the facts in the record and the applicable law, the applications cannot be approved to cure the previously unpermitted construction of the water ski lake and North Reservoir. The HO's decision in Ski Lake I constitutes the county's final action on the applications before the Hearings Officer on a previous and substantially similar application for conditional use permit approval for the same surface mining to create the reservoirs before me in this matter. In Ski Lake I, the Board of County Commissioners denied review of an administrative appeal and appeals to the Land Use Board of Appeals (LUBA) were dismissed. See ORS 215.422, .427; see also ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed); ORS 197.015(10) (definition of land use decision). Res judicata (claim preclusion) and collateral estoppel (issue preclusion) are equally applicable to final administrative decisions as they are in judicial decisions. North Clackamas School Dist. v. White, 305 Or 48, 750 P2d 485, modified 305 Or 468 (1988) (North Clackamas). Local government quasi-judicial land use proceedings are similar to adjudicative administrative agency proceedings. Therefore, the rules of res judicata apply to these county proceedings. See Gittlesohn v. City of Cannon Beach, 44 Or App 247, 605 P2d 743 (1979) (subsequent action filed in circuit court, to declare building permits were issued in violation of zoning ordinance, precluded because of res judicata effect of prior circuit court proceedings which could have or did determine validity of zoning action). Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the nature, impact and suitability of the surface mining work. The HO's factual findings in the county's " Counsel for the Bishops also argues that the subject applications should not be reviewed until the Declaratory Action in Bishop v. KC Development Group, LLC et al, Deschutes County Circuit Court Case No. 17CV21383, and its related Motion for Preliminary Injunction are decided. There is no controlling provision in the zoning code or Procedures Ordinance that would prevent the county from processing any land use applications due to a pending circuit court case. The Hearings Officer rejects this argument. 15 final land use decision in Ski Lake I are binding on this Hearings Officer. As the North Clackamas court stated, there is no reason why the rules of res judicata should not apply where "[t]he same quality of proceedings and opportunity to litigate is present in both proceedings. Id. at 52. The court also stated that where the forum is the same in both the original and subsequent proceedings, it need not consider further the relative competence and responsibility of the two forums. On the other hand, the question of the applicability of DCC 18.60.030(W) is a legal issue to which issue preclusion does not apply; the standard is determined de novo. See North Clackamas, citing Restatement § 28(2). As discussed below, this Hearings Officer finds that there is no legal basis in the Code on which the applicant may rely to obtain after -the - fact approval of the surface mining conducted to create the reservoirs. A. Purpose of Reservoir Construction Uncontroverted facts in the record show that: (1) the surface mining work that is the subject of these applications was performed solely by KCDG without consultation with Tumalo Irrigation District (TID); (2) the contract between KCDG and TID was entered into after the work was completed; (3) the subject reservoirs are not listed or planned for in any TID irrigation water plans or contracts; (4) there is no currently existing contract between KCDG and TID for storage or use of TID water; and (5) KCDG does not have any OWRD right to store surface water in the reservoirs. 12 Excavation of the two artificial lakes occurred in March 2014. The original contract between KCDG and TID was entered into after the fact, in June 2014. The contract only governed storage of water; it did not contain any authorization by TID to KCDG to engage in any surface mining activities to create the reservoirs. The reservoirs were created by KCDG on its own initiative and for its own purposes without TID involvement. TID was not a party to the contracts between KCDG and the contractors that performed the surface mining work (Taylor NW and BLT lining). Of note is the fact that TID's August 4, 2014 LUCS application did not address the surface mining that had occurred, but only the transfer of water to the constructed reservoirs: "This is an intra -district transfer in place of use of 108 a. f. [acre feet] of Tumalo Creek Water. TID to TID (Storage water). The transfer of this storage water is necessary for the operation and maintenance of our irrigation system, and allowed as an outright use in the RR -10 zone. The current site was built in the 1920's and no longer serves TID's needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Services responders, and provide increased efficiency in the operations and maintenance of the TID system overall. The issues presented in the LUCS applications are not before the Hearings Officer in these proceedings. As the county has found, the zoning code does not regulate the storage of water in reservoirs for the purposes of aesthetic landscaping, emergency fire protection, or pass-through irrigation for the property owner. The question before me is 12 OWRD denied application G18422 in which the applicant requested permission to obtain surface water for the reservoirs from TID. Further, as set forth in its April 26, 2017 letter, OWRD further confirms that long-term storage of water in lakes does not constitute a "bulge in the system." 16 whether a conditional use permit retroactively authorizing the surface mining undertaken by KCDG in Spring 2014 should issue. The Hearing Officer's December 15, 2014 decision characterized the use as one proposed by TID. The Hearings Officer's January 21, 2016 denial of applications for surface mining and recreational use of the man-made lakes was made on jointly submitted applications for conditional use approval by TID and KCDG. No additional work has been done since these decisions; in this regard, the factual circumstances have not changed. However, there can be no question that KCDG alone performed the work and thus, the "use," which has already occurred, is not proposed by TID. Moreover, in the subject applications, only KCDG seeks approval; TID is not an applicant. There is no agreement between KCDG and TID concerning storage or use of TID water in the reservoirs. There is no evidence in the record of any authorization to store irrigation water in the two man-made lakes/reservoirs. The reservoirs do not constitute part of TID's existing irrigation system. TID was not involved in the envisioning, design construction or use of the reservoirs. It is not a co - applicant. In short, TID was never officially involved in the surface mining and it is not involved now. Accordingly, this Hearings Officer concludes that the surface mining was not completed "in conjunction" with TID. The reservoirs were already in place when the applicant and TID jointly applied for conditional use permit approval for the surface mining in Ski Lake I, which the Hearings Officer denied. In this regard, the HO's determination in Ski Lake I that DCC 18.060.020(W) includes applicable standards for evaluating the after - the -fact permit application for the use is not binding on this Hearings Officer. The purpose of KCDG's overall envisioned development is a private, for-profit residential development venture, which plans date back to 2011. The long, shallow South Reservoir is designed to water-ski lake standards, including two man-made islands for turning and a long center "arm" between the two.13 The evidence shows that the reservoirs are not designed to function efficiently in terms of re -regulation. They are not engineered to store water, even if they may be able to serve such a purpose; the purpose of the surface mining was to create recreational facilities to serve as centerpieces of a residential development. The project is not for the benefit of TID or to preserve flows. KCDG's attempt to tie the surface mining to TID is an after -the -fact rationalization in an attempt to find authority for its private surface mining activities in the rural residential zone. 14 This attempt fails. B. Surface Mining in the RR -10 Zone There is no authority in the Code that allows for private surface mining in the RR -10 zone. DCC 18.60.020 (uses permitted outright) and DCC 18.60.030 (uses conditionally permitted). The surface mining that is the subject of these applications was undertaken solely by KCDG without involvement by or direction from TID. 13 As this Hearings Officer decided in KG Ranch LLC, file no. 247 -15 -000221 -CU, design of man- made lakes belies their true purpose and the intent of the applicant in designing and constructing them. 14 That the reservoirs may be used for emergency fire protection is irrelevant to the application standards before me. 17 DCC 18.60.030(W) conditionally allows surface mining in the RR -10 zone "in conjunction 15 with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs and the off-site use, storage and sale of excavated material." As set forth above, the Hearings Officer finds that the surface mining conducted by KCDG was not performed in conjunction with the operation and maintenance of any TID (or any other irrigation district) irrigation system, or in conjunction with TID (or any other irrigation district) for the off-site use, storage and sale of excavated material because the work was not performed at the same time as TID's initial request to store water in the newly -constructed reservoirs. DCC 18.04.030 defines "surface mining" as: A. Includes: 1. All or any part of the process of mining that includes removal of the overburden and extraction of natural mineral deposits thereby exposed by any method including, open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off-site borrow pits, except those constructed for access roads; and 2. Mining which involves removal of more than 1,000 cubic yards of material or excavation prior to mining of a surface area more than 1 acre in size. B. Does not include: 1. ... 2. Excavation and crushing of sand, gravel, clay, rock or other similar materials conducted by a landowner, contractor or tenant on the landowner's property for the primary purpose of construction, reconstruction or maintenance of access roads and excavation or grading operations conducted in the process of farming or cemetery operations, on-site road construction and other on-site construction, or nonsurface impacts of underground mines; .. . The work performed by KCDG meets both parts of the inclusive definition of surface mining because removal of more than 1,000 cubic yards of material consisting of overburden and extraction of rock deposits occurred. The County exemption for surface mining under its definition, set forth above, is inapplicable for three independent reasons: (1) the Board of County Commissioners has already determined In land use file number 247 -14 -000238 -PS that the creation of the reservoirs should be characterized as surface mining in conjunction with an irrigation district requiring a conditional use permit; (2) the excavation and rock crushing performed by the applicant was not for the primary purpose 16 of construction, reconstruction or 15 The phrase "in conjunction with" is not defined in the County Code. The Merriam -Webster Dictionary defines "conjunction" as, among other things, "occurrence together in time or space: concurrence: a conjunction of events." https://www.merriam-webster.com/dictionary/conjunction 1s Merriam -Webster's dictionary defines "primary" in part as, "of first rank, importance, or value: Principal — the primary purpose. https://www.merriam-webster.com/dictionary/primary As a rule of statutory construction, the words used in a statute or regulation are to be given their "plain" or "ordinary" meaning. Oregon courts frequently consult dictionary definitions in such cases where a term or phrase is not defined on the assumption that, if the legislature did not provide a specialized definition for a term, the dictionary will help to shed light on its meaning as intended maintenance of access roads, regardless of the fact that some material was used on an access road; and (3) the county's definition of surface mining is preempted by state law under ORS 517.780(1)." Even if the surface mining exemption could be applied in this matter, essentially reversing the final decision of the county in land use file number 247 -14 -000238 -PS, the applicant does not meet its standards. The primary — most important - purpose of extracting material and overburden was to create two reservoirs for recreation, intended to serve the future homeowners of lots developed by KCDG or its successor. The Hearings Officer has determined, above, that creation of the reservoirs for TID water storage was not the intended purpose. Use/storage of TID water was considered after the reservoirs were already constructed. Moreover, use of the excavated aggregate was not limited to on-site uses, particularly considering the use on the westerly road on TL 828. Moreover, the Hearings Officer cannot rely on the county's definition of surface mining, which impermissibly conflicts with the state's definition in this regard. State law is controlling. E.g., LaGrande/Astoria v. PERE, 281 Or. 137, 576 P.2d 1204, affd on rehearing 284 Or. 173, 586 P.2d 765 (1978) ("a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community's freedom to choose its own political form"). Simply, a private property owner cannot undertake surface mining activities in the RR -10 zone. Only irrigation districts are permitted to surface mine Non -Significant Goal 5 Aggregate resources and the only surface mining potentially allowed in RR -10 zone is a conditional use for surface mining in conjunction with irrigation district activities under DCC 18.60.030(W) (emphasis added). The Hearings Officer has determined that the surface mining work was not performed "in conjunction" with TID. The property owner was required to, but failed to obtain a zone change from RR -10 to a zone that allows private surface mining as an outright or conditionally permitted use before seeking approval to conduct such work. Thus, no conditional use permit may issue pursuant to DCC 18.128.280(6)(1) because the surface mining is not necessary to "conduct or maintain a use allowed in the zone in which the property is located." The Hearings Officer denies the conditional use permit at the outset because the private surface mining work is not permitted as a conditional use, or an outright permitted use in the RR -10 zone. There is no legal basis on which the application can be approved. APPLICANT'S RIGHT TO APPLY FOR A POST-ACKNOLEDGEMENT PLAN AMENDMENT (PAPA) by the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). 1' "The provisions of ORS 517.702 (Legislative findings) to 517.989 (Rules applicable to consolidated application) and the rules and regulations adopted thereunder do not supersede any county zoning laws or ordinances in effect on July 1, 1972. However, if the county zoning laws or ordinances are repealed on or after July 1, 1972, the provisions of ORS 517.702 (Legislative findings) to 517.989 (Rules applicable to consolidated application) and the rules and regulations adopted thereunder are controlling. The county's definition of "surface mining" was not in effect on July 2, 1972, but was adopted in 1979. 19 In land use file number 247 -14 -000238 -PS, the Board of County Commissioners found that the creation of the reservoirs should be characterized as surface mining in conjunction with an irrigation district requiring a conditional use permit pursuant to DCC 18.60.030(G). For the reasons set forth above, this Hearings Officer determines that: (1) the code does not authorize private surface mining in the RR -10 zone and (2) that the applicant's work was not performed in conjunction with an irrigation district. If such determinations are reversed on appeal and the reviewing body rules that a conditional use permit may issue pursuant to DCC 18.128.280(D)(2), approval of a permit for surface mining is only allowed if the site is on the county's Goal 5 non-significant inventory list, Table 5.8.2 of the county Comprehensive Plan. Accordingly, the Hearings Officer finds a PAPA is required as set forth in the following analysis. The applicant requested approval of a PAPA application in conjunction with its request for approval of an after -the -fact conditional use permit for surface mining. However, the applicant argues a PAPA is not necessary to allow TID to use the South Reservoir as a reregulation reservoir. The Hearings Officer determines that the applicant has missed the point. The PAPA application is required in order to authorize the surface mining use that created the reservoirs, not the potential use of such reservoirs for reregulation. DCC 18.128.280(D)(2). The applicant's argument is set forth in relevant part below: Applicant does not believe that a comprehensive plan amendment, the PAPA, is necessary. The application to add the subject property to Table 5.8.2 is being submitted reserving the applicant's legal position that such a listing is not required to allow TID to use the New Reservoir as a reregulation reservoir. The Deschutes County comprehensive plan contains an inventory of properties that contain insignificant aggregate and mineral resources. This inventory was developed to allow the County to authorize surfacing mining and the sales of aggregate and mineral mined by irrigation districts on properties that may not meet the standards of significance set by the Goal 5 rules (OAR 660-023). This fact is explained in the Staff Report adopted as a part of Deschutes County Ordinance 2001-39, Exhibit [G]. The primary impetus for adopting the nonsignificant resource inventory was that ORS 197.298 required listing on an inventory to authorize surface mining in EFU zoning districts. After Deschutes County adopted the inventory, the Oregon Court of Appeals determined that listing on this type of inventory was not sufficient to authorize mining in EFU zoning because ORS 197.298 was referring to an inventory of significant Goal 5 resources; not to inventories of insignificant resources. Beaver State Sand and Gravel, Inc. v. Douglas County, 187 Or App 241 (2003). The County's comprehensive plan does not, however, contain any policies that create approval criteria for the review and approval of applications of this type. The Hearings Officer is guided by the direction provided by the Board and prior HO decision with respect to the PAPA requirement, which decisions are binding. I find that the 20 facts have not changed between the original HO denial concerning the surface mining applications in January 2016 and the subject applications before me in this proceeding (other than the fact that TID is no longer an applicant). The Hearings Officer determines that the PAPA requirement applies to the subject application under OAR 660-023- 250(3)(a) because the PAPA would create or amend a resource list adopted in order to address specific requirements of Goal 5. The opposition has not demonstrated that the PAPA application cannot be considered on the basis that it is untimely under the rules set forth in OAR Chapter 660-023. The applicant's argument concerning previous county determinations is not controlling. Even accepting the applicant's argument that the non-significant inventory was erroneously adopted into the Comprehensive Plan with respect to the EFU Zone under ORS 197.298, the unavoidable fact is that this inventory exists, it applies to the RR10 Zone, and the criteria under DCC 18.128.280(D)(2) require the subject property to be included on the inventory. I cannot ignore the criteria under DCC 18.128.280(D)(2), nor may I characterize the excavation and re -contouring of the former mining pit as something other than surface mining. The Hearings Officer's review of the PAPA application follows below. OAR 660-023, PROCEDURES AND REQUIREMENTS FOR COMPLYING WITH GOAL 5 660-023-250, Applicability (2) The requirements of this division are applicable to PAPAs initiated on or after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated prior to September 1, 1996. For purposes of this section "initiated" means that the local government has deemed the PAPA application to be complete. FINDING: The proposed post -acknowledgement plan amendment (PAPA) was initiated on July 23, 2017. Therefore, the requirements of this division apply. (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if. (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5; FINDING: The applicant proposes a PAPA to add a site to the non-significant mineral and aggregate inventory, detailed in Table 5.8.2 of the Deschutes County Comprehensive Plan. As this Table is for non-significant mineral and aggregate sites, and the applicant does not propose to amend the Goal 5 significant mineral and aggregate inventory, the Hearings Officer finds the proposal will not affect a Goal 5 resource. (b) The PAPA allows new uses that could be conflicting uses with a particular significant Goal 5 resource site on an acknowledged resource list; or FINDING: The applicant's burden of proof provides the following findings, 21 The PAPA is not allowing a new use that could be a conflicting use with a significant Goal 5 resource site on an acknowledged resource list. The area protected by the WA overlay zone for deer winter range is not listed on a resource list as a significant Goal 5 resource site. Even if it were listed, the surface mining is an historic use of the subject property, not a new use. Furthermore, surface mining is not identified as a conflicting use in the County's ESEE for deer winter range (Ordinance No. 92-41). It is also allowed by the County's WA zone that implements Goal 5 and the policies of the comprehensive plan. The Hearings Officer finds that there is no "new use" that could conflict with a significant Goal 5 resource site on an acknowledged resource list and that the area protected by the WA Combining Zone is not listed on a resource list as a significant Goal 5 resource site. The list of prohibited uses in the WA Combining Zone does not include surface mining. Surface mining is allowed by the WA Combining Zone that implements Goal 5 and the policies of the comprehensive plan. (c) The PAPA amends an acknowledged UGB and factual information is submitted demonstrating that a resource site, or the impact areas of such a site, is included in the amended UGB area. FINDING: The proposed PAPA will not amend an urban growth boundary (UGB). Therefore, I find that this rule does not apply. For the reasons detailed above, the Hearings Officer finds the proposed PAPA will not affect a Goal 5 resource. Consequently, pursuant to subsection (3), 1 find that the county is not required to apply Goal 5 to the proposed PAPA. OAR 660-023-0030, Inventory Process (6) Local governments may determine that a particular resource site is not significant, provided they maintain a record of that determination. Local governments shall not proceed with the Goal 5 process for such sites and shall not regulate land uses in order to protect such sites under Goal 5. FINDING: In the Board of County Commissioners' approval of PA-07-2/ZC-07-2, the Board determined the former mining site no longer contained significant mineral or aggregate resources and removed the subject property from the Goal 5 inventory. Pursuant to Deschutes County Ordinance 2001-39, the county created a list of non- significant mineral and aggregate sites detailed in Table 5.8.2. It is to this inventory that the applicant proposes to add the subject property. DESCHUTES COUNTY COMPREHENSIVE PLAN The Hearings Officer agrees with the applicant's burden of proof, which states no approval criteria for this type of PAPA exist in the Comprehensive Plan. The Hearings Officer notes there are no applicable Comprehensive Plan goals and policies in Section 2.10, Surface Mining, that pertain to amending Table 5.8.2, "Non -Significant Mining Mineral and Aggregate Inventory." Additionally, no approval criteria for PAPAs are included in the county's zoning ordinance. 22 The Hearings Officer approves the PAPA application for all the foregoing reasons. The subject property should be added to the non-significant mineral inventory list in Table 5.8.2 of the comprehensive plan. TITLE 18, COUNTY ZONING A. Chapter 18.60, Rural Residential Zone 1. Section 18.60.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: W. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material. FINDING: The applicant proposes to authorize its previous establishment of two reservoirs, purportedly in conjunction with TID. As set forth above, TID is not an applicant under the subject applications and is not an owner of the subject property. The subject surface mining work preceded an agreement between the applicant and TID concerning storage of irrigation water, which agreement has since been terminated in June 2016. The Hearings Officer finds that the request for an after -the -fact conditional use permit for surface mining is not in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District," such that DCC 18.60.030(W) is inapplicable. To fully develop a record on appeal, the Hearings Officer sets forth the following findings on conditional use permit criteria, if a reviewing body determines that approval of a CUP is allowable under the County Code. 2. Section 18.60.040. Yard and Setback Requirements. In an RR 10 Zone, the following yard and setbacks shall be maintained... FINDING: Although the reservoirs are structures, they are not buildings. Accordingly, the Hearings Officer finds the yard setback requirements do not apply. 3. Section 18.60.060. Dimensional Standards. In an RR 10 Zone, the following dimensional standards shall apply. A. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover in excess of 30 percent of the total lot area. FINDING: As set forth in the findings above, the reservoirs are not buildings. Therefore, I find that the lot coverage standard does not apply to the reservoirs. B. Chapter 18.56, Surface Mining Impact Area Combining Zone 23 Section 18.56.030. Application of Provisions. The standards set forth in DCC 18.56 shall apply in addition to those specified in DCC Title 18 for the underlying zone. If a conflict in regulations or standards occurs, the provisions of DCC 18.56 shall govern. FINDING: The standards under DCC 18.56 are addressed in the following findings. Other applicable criteria are also addressed in this Decision. 2. Section 18.56.050. Conditional Uses Permitted. Uses permitted conditionally shall be those identified as conditional uses in the underlying zone(s) with which the SMIA Zone is combined and shall be subject to all conditions of the underlying zone(s) as well as the conditions of the SMIA Zone. FINDING: The Hearings Officer has determined that the privately constructed reservoirs were not created in conjunction with TID for the purposes of operation and maintenance of a TI irrigation system, such that the reservoirs are not a conditionally permitted use in the RR -10 zone. If such determination is reversed on appeal and if a reviewing body determines that DCC 18.60.030(W) is applicable authority on which a conditional use permit could issue in the RR -10 zone for the subject reservoirs, then, under this criterion, the use could also be allowed conditionally in the SMIA Combining Zone. In order to be approved, the proposed uses shall meet the requirements of a conditional use permit application, set forth below. 3. Section 18.56.070. Setbacks. A. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SMIA Zone shall be located within 250 feet of any surface mining zone, except as provided for in Section 18.56.140. B. No noise -sensitive or dust sensitive use or structure established or constructed after the designation of the SMIA zone shall be located within one-quarter mile of any existing or proposed surface mining processing or storage site, unless the applicant demonstrates that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards, and conditions set forth in DCC 18.52.090, 18.52.110, and 18.52.140, respectively. FINDING: The proposed reservoirs are not dust- or noise -sensitive uses as defined in DCC 18.0418. The Hearings Officer finds these criteria do not apply. 18"Dust-sensitive use" means real property normally used as a residence, school, church, hospital or similar use. Property used in industrial or agricultural activities is not "dust -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses such as garages and workshops do not constitute dust -sensitive uses. DCC 18.04.030 (definitions). "Noise -sensitive use" means real property normally used for sleeping or normally used as schools, churches, hospitals or public libraries. Property used in industrial or agricultural activities is not "noise -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory 24 C. Additional setbacks in the SMIA zone may be required as part of the site plan review under DCC 18.56.100. FINDING: Because the reservoirs are not dust- or noise -sensitive uses, the Hearings Officer finds no additional setbacks are required. 4. Section 18.56.080. Use Limitations. No dwellings or additions to dwellings or other noise -sensitive or dust -sensitive uses or structures shall be erected in any SMIA Zone without first obtaining site plan approval under the standards and criteria set forth in DCC 18.56.090 through 18.56.120. FINDING: As set forth above, the Hearings Officer finds the reservoirs are not a dust -or noise -sensitive use. Therefore, I find that the criteria under DCC 18.56.090 through 18.56.120 do not apply. 5. Section 18.56.120. Waiver of Remonstrance. The applicant for site plan approval in the SMIA Zone shall sign and record in the Deschutes County Book of Records a statement declaring that the applicant and his successors will not now or in the future complain about the allowed surface mining activities on the adjacent surface mining site. FINDING: The proposed reservoirs are not subject to site plan review under this chapter. Therefore, a waiver is not required. C. Chapter 18.84, Landscape Management Combining Zone Section 18.84.020. Application of Provisions. The provisions of this chapter shall apply to all areas within one- fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of this chapter shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified a landscape management corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitation in this section shall not unduly restrict accepted agricultural practices. FINDING: Both Johnson Road and Tumalo Creek are identified on the County Zoning Map as the referenced landscape management features relevant to the subject property. uses such as garages or workshops do not constitute noise -sensitive uses. DCC 18.04.030 (definitions). 25 A portion of the subject property falls within these Landscape Management Combining Zones. Therefore, the Hearings Officer finds provisions of this chapter apply. 2. Section 18.84.040. Uses Permitted Conditionally. Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDING: The North Reservoir is not located within an LM Combining Zone. The South Reservoir is located within the LM Zones identified above. The Hearings Officer has determined that the reservoirs are not a conditionally allowed use in the underlying RR -10 Zone because they were privately constructed not in conjunction with an irrigation district for the purposes of operation and maintenance of an irrigation system operated by an irrigation district. Thus, the uses are not permitted conditionally in the LM zone. If such determinations are reversed on appeal and a reviewing body finds that the uses may be allowed conditionally under DCC 18.60.030(W), such uses would therefore be allowed conditionally in the LM Combining Zone. To fully develop a record on appeal, the Hearings Officer sets forth the following findings on DCC 18.84 permit criteria, if a reviewing body determines that approval of a CUP for private surface mining in the RR -10 zone is allowable under the County Code. 3. Section 18.84.050. Use Limitations. A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. FINDING: The structure on-site is the South Reservoir19. However, this reservoir does not require a building permit. For this reason, the Hearings Officer finds site plan approval pursuant to the LM Zone is not required. D. Chapter 18.88, Wildlife Area Combining Zone Section 18.88.020. Application of Provisions. The provisions of DCC 18.88 shall apply to all areas identified in the Comprehensive Plan as a winter deer range, significant elk habitat, antelope range or deer migration corridor. Unincorporated communities are exempt from the provisions of DCC 18.88. 19 In the concurrent applications for the ROF and PUD, this Hearings Officer analyzes the LM Zone criteria against the proposed boathouses and dwellings - structures requiring building permits. 26 FINDING: The subject property is within the Tumalo deer winter range. Therefore, I find that the provisions of this chapter apply. 3. Section 18 88 040. Uses Permitted Conditionally. A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the conditional uses permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this title. FINDING: The Hearings Officer has determined that the reservoirs are not a conditionally allowed use in the underlying RR -10 Zone because they were privately constructed not in conjunction with an irrigation district for the purposes of operation and maintenance of an irrigation system operated by an irrigation district. Thus, the uses are not permitted conditionally in the WA zone. To fully develop a record on appeal, the Hearings Officer sets forth the following findings on DCC 18.88 permit criteria, if a reviewing body determines that approval of a CUP for private surface mining in the RR -10 zone is allowable under the County Code. 4. Section 18.88.060. Siting Standards. A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. FINDING: The applicable setbacks of the RR10 Zone are addressed above. 5. Section 18.88.070. Fencing Standards. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. 27 FINDING: The applicant does not propose new fencing. If this Decision is reversed and the use is approved on appeal, a condition of approval requiring any new fencing installed as part of the reservoir use to comply with these standards should be imposed. E. Chapter 18.128, Conditional Uses Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The applicant requests after -the -fact conditional use permit approval for the reservoirs. As set forth above, the Hearings Officer finds that there is no legal authority to approve a permit for the privately -constructed reservoirs: (1) for which the requested permits have not been jointly requested by TID; and (2) which were not constructed in conjunction with the operation and maintenance of irrigation systems operated by TID. To fully develop a record on appeal, the Hearings Officer addresses the following findings on conditional permit criteria, if a reviewing body determines that approval of a CUP for private surface mining in the RR -10 zone is allowable under the County Code. As set forth in the HO findings on page 79 in Ski Lake I, for the purposes of addressing suitability of the site for its use for the reservoirs, the "site" is considered as the subject property as it existed after the surface mine was reclaimed, and prior to any excavation to create the now -existing reservoirs. Site The Hearings Officer witnessed the areas that include the North Reservoir, the South Reservoir and Tumalo Creek, surrounding road networks and access at a site visit dated October 26, 2017. Based on a review of Google Earth images from July 2000 and August 2012, the area which includes the North Reservoir appears to have been cleared and likely historically used for some type of crop. At least since July 2000, a small pond has been located in the southeast corner of the property identified as tax lot 820 on applicant Exhibit B. The siting of the North Reservoir in this area appears to take advantage of the previous clearing of the land. The future configuration of tax lot 820 is large enough to accommodate the dimensions of the North Reservoir. While it is true that the current dimensions of the North Reservoir dwarf the historic irrigation pond, there is no evidence to support a finding that the siting of the North Reservoir in this area is unsuitable for use as a reservoir. The Hearings Officer finds the location of the North Reservoir is suitable to the subject property. The site of the South Reservoir sits predominantly within the previous surface mining pit. After reclamation, the mining pit was re-contoured and planted with grasses. Siting of the South Reservoir in this area takes advantage of the existing mining pit. However, creation Ml of the South Reservoir removed vegetation from the site and deepened the previous pit. The Hearings Officer finds that any other location on the subject property to establish a reservoir use would require significantly more excavation and disturbance to previously undisturbed portions of the site. The South Reservoir is located adjacent to the TID's Tumalo Feed Canal for convenient access to TID water. For these reasons, the Hearings Officer finds the location of the South Reservoir is suitable to the subject property and use as a reservoir. Design The North Reservoir is proposed to be comprised of one tax lot as shown in the applicant's Exhibit B. The property which includes the North Reservoir is large enough to accommodate the reservoir dimensions. The North Reservoir is lined to minimize water loss due to seepage, and includes a piped connection to the South Reservoir, which is also lined. The applicant states the design also includes an outflow structure between the North and South Reservoirs that will contain a pump and pipe, which can direct the water back to TID's system of canals, although, again, TID is not an applicant and there is no agreement between TID and KCDG to use the reservoirs for irrigation purposes. The applicant provided information concerning use of the reservoirs for re -regulation, but that proposed use is not properly before the Hearings Officer given the identity of the applicant/developer and the fact that the applicant performed the work first and then sought to legitimize it via an agreement with TID for re -regulation, which agreement was terminated more than 18 months ago. The South Reservoir is proposed to be comprised of two tax lots as shown in Exhibit B. The property which includes the South Reservoir is large enough to accommodate the dimensions of the reservoir. The South Reservoir is also lined and includes a weir and headgate to accept water from the Tumalo Feed Canal, although TID is not an applicant and, as of June 2016, the agreement between TID and KCDG to use the reservoirs for irrigation purposes has been terminated. As with the North Reservoir, a proposal to use the South Reservoir for irrigation district purposes is not before me given the identity of the applicant and the fact that the applicant performed the work first and then sought to legitimize it via an agreement with TID for re -regulation, which agreement has been terminated more than 18 months ago. The HO in Ski Lake I determined, and this Hearings Officer agrees, that the constructed reservoirs are "quite different" in size, shape and appearance than typical rural irrigation ponds and that the size is out of character for such use. She also determined that the reservoirs are much larger than the vast majority of surrounding lots. This Hearings Officer finds that the unnatural shape of the South Reservoir in particular is not designed appropriately for use as a re -regulation pond and has instead been designed for a water- ski lake. Moreover, unlike the natural steep slopes in the vicinity of Tumalo Creek, the slopes created by the applicant are not natural in this area of the property. Photographs in the record show that the previous reclamation did not create a derelict pit that simply needed "smoothing" to create a re -regulation pond. The applicant undertook excavation activities that made the pits deeper by as much as 30 feet in some areas. Operating Characteristics The two reservoirs together have the capacity to hold 125 acre-feet of water in addition to the 55 acres of irrigation water right appurtenant to the subject property. The applicant provided information concerning potential use of the reservoirs for re -regulation, but that 29 proposed use is not before the Hearings Officer given the fact that TID is not an applicant and there is no longer any agreement between TID and KCDG to use the reservoirs for irrigation district purposes. Moreover, as discussed above, there is no authorization by WRD to transfer any TID water to the created reservoirs and the applicant's groundwater rights do not allow for re -regulation. 2. Adequacy of transportation access to the site; and FINDING: Both reservoirs will be accessed from private PUD roads proposed under a separate application. Regardless ofwhetherthe PUD application is approved, the existing graveled road along the western property line along with existing paved driveways on-site will provide adequate access to both reservoirs. No comments were received from the county Road Department or the Planning Division's Senior Transportation Planner Peter Russell indicating a need for different access or for any transportation related improvements to nearby public roads. The Hearings Officer finds transportation access to the reservoirs is adequate to the site. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: In Ski Lake I, the HO made the following findings, which were not challenged on appeal, constitute the final decision of the county on these issues and thus shall be binding with respect to the subject applications: 1. General Topography. Photographs in the record show the general topography on the subject property prior to excavation for the reservoirs consisted primarily of level areas up to the edge of Tumalo Creek Canyon, and the reclaimed Klippel mining pits which comprised a large depressed area with contoured slopes. The topography of the mining pits was altered significantly to create the reservoirs by making the pits deeper to accept a liner and hold water, and by making the banks steeper in some places. In addition, although creation of the reservoirs left the existing tree cover intact, it removed most or all of the vegetation in and around the reclaimed pits, resulting in large areas of gravel, rock and dirt completely denuded of vegetation. As discussed in the findings above, although the Hearings Officer has found the subject property was suitable for creation of the reservoirs considering the presence of the reclaimed mining pits, 1 have found the resulting change in topography and landscape that obliterated vegetation rendered the southern reservoir inharmonious with the surrounding natural environment and existing rural residential development. 2. Natural Hazards. The Hearings Officer finds the only natural hazard that existed on the subject property prior to creation of the reservoirs (and which exists at present) is the risk of wildfire. I find that risk is no greater on the subject property than elsewhere on the west side of Bend. And the record includes evidence that water in the reservoirs has been made available and used for wildfire suppression. 3. Natural Resource Values. The Hearings Officer finds the natural resource values that existed on the subject property before creation of the reservoirs and commencement of motorized boating and waterskiing on the southern reservoir were native vegetation and wildlife habitat. I further find the wildlife habitat consisted of vegetation providing both forage and cover, a water source from Tumalo Creek, gently rolling topography, and a relatively quiet and undisturbed rural environment 30 As discussed in the findings above under the site plan approval criteria in Chapter 18.124, 1 have found construction of the reservoirs removed most or all of the vegetation in the reclaimed Klippel mining pits and the surrounding land outside the forested areas, and thereby removed the wildlife habitat that vegetation provided. Based on those findings, incorporated by reference herein, I have found that if the applicant's proposal is approved on appeal, it should be subject to conditions of approval requiring the property owners to develop and implement a wildlife habitat mitigation plan consistent with ODFW's Fish and Wildlife Habitat Mitigation Policies, submit to the Planning Division written documentation from ODFW that the habitat mitigation plan has been completed consistent with those policies, retain all existing vegetation, and leave the area between the two reservoirs free of fencing and other physical barriers. The Bishops and other opponents argue the proposed recreational use will negatively impact wildlife use of the subject property because the sight and sound of motorized boating on the southern reservoir and the increase in vehicular traffic from the property owners' guests will disturb wildlife. The applicant has stated no motorized boating will occur on the southern reservoir during the winter range closure period from December 1 through March 31 each year. The Hearings Officer concurs with the applicant that this limitation will eliminate conflicts between the recreation use and wintering deer. The record contains conflicting evidence concerning the impacts on wildlife from recreational use of the southern reservoir outside the winter range closure months. The applicant's expert Paul Valcarce testified that deer adapt to human presence and activities, and for that reason in his opinion neither the reservoirs nor the recreational use on the southern reservoir will have negative impacts on wildlife. In addition, the record includes numerous photographs of wildlife including deer, elk and waterfowl utilizing the subject property and the reservoirs. However, as discussed above, ODFW expressed concern about impacts on wildlife and their habitat from the reservoirs and recreation thereon. ODFW recommended that the property owners be required to undertake several measures to address loss of habitat and the potential for the reservoirs to create barriers to deer and elk movement. The Hearings Officer has recommended that if the applicant's proposal is approved on appeal, such approval should be subject to conditions of approval requiring the property owners to mitigate for lost habitat and refrain from creating physical barriers in the space between the two reservoirs such as fencing. The Hearings Officer finds that whether the subject property is suitable for the reservoirs and the proposed recreational use on the southern reservoir considering natural resource values — and in particular wildlife habitat -- is a close question. Construction of the reservoirs removed large amounts of vegetation that provided forage, and changed the topography on the subject property from the previous level to rolling terrain to a deeper and steeper -banked depression holding water. The applicant's proposed recreational use of the southern reservoir will generate continuous noise and human activity eight months per year of a much greater intensity and duration than existed before the reservoirs were created. I find all of these factors have and/or will adversely affect wildlife habitat. On the other hand, it appears the reservoirs have provided a new source of water for wildlife. However, on balance, I find the addition of this water source to the existing source of Tumalo Creek does not outweigh the overall negative effects on habitat from the reservoirs and recreational use on the southern reservoir. For these reasons, 1 find the applicant has not demonstrated the subject property is suitable for the reservoirs 31 and the proposed recreational use on the southern reservoir considering natural resource values including wildlife habitat. Facts concerning the general topography characteristics described by the HO in Ski Lake I have not changed between the date of such decision and the present. Accordingly, the findings of the HO in Ski Lake I are binding, The Hearings Officer addresses each of the issues below. General Topography. Under the Site Plan criteria in DCC 18.124.060(8), the HO in Ski Lake I found that KCDG had altered the post -reclamation slopes of the mining pit to such an extent as to not be harmonious with the subject property. The applicant submitted a DOGAMI letter from Ben Mundie (Exhibit O) to dispute this finding, which indicates the in - water slopes are 3H:1 V or flatter, which meets or exceeds DOGAMI standards. The letter goes on to state the above -water slopes are 1 1/2H:1V or flatter, which also meets or exceeds DOGAMI standards. The DOGAMI letter determines that the South Reservoir is internally drained with precipitation within the tax los flowing toward the pond. The Hearings Officer finds that the February 19, 2015 letter from Mr. Mundie only addresses DOGAMI standards and does not speak to or constitute substantial evidence concerning natural slopes. I agree with the HO in Ski Lake I that the reclaimed mining pit is inconsistent with the general topography of the site. Natural Hazards. The HO in Ski Lake I found, and I agree, that the primary natural hazard on the site is wildfire risk. Due to the water storage capacity of both reservoirs and the significant use of the reservoirs during recent wildfires, the Hearings Officer finds the reservoirs will be a significant benefit to wildfire suppression. Natural Resource Values. The HO in Ski Lake I found the natural resource values of the site, pre -reservoirs, consisted of the reclaimed mine including the native vegetation and wildlife habitat that was removed in and around the current location of the reservoirs. On page 62 of her decision, the HO found that the South Reservoir, "...has a distinctly unnatural look that contrasts unfavorably with the surrounding natural environment and is much less harmonious with that environment than were the reclaimed mining pits." On page 63 of her decision, the HO further finds, "...the reservoir's appearance may be made more natural looking by re -contouring its steepest banks and re -vegetating the area between the banks and the surrounding forested areas." The applicant compared the slopes of the reservoirs with the natural slopes surrounding Tumalo Creek. The Hearings Officer determines such comparison is not helpful to the issues related to natural resource values. Regardless of whether the slopes of the South Reservoir comply with DOGAMI standards, I find that the reservoir remains an unnatural design, shape and depth that does not blend with the surrounding natural environment, nor is it harmonious with the environment. If the use is approved on appeal, a condition of approval requiring the applicant to re - vegetate the disturbed areas around the South Reservoir pursuant to the Landscape Plan shown in application Exhibit P and Exhibit Q should be imposed, except that all soil should be required to originate off-site. Additionally, a condition of approval should be imposed requiring the applicant to re -contour the South Reservoir bank slopes such that the unnatural appearance vis-a-vis the natural environment is mitigated. With respect to habitat loss, on pages 64 and 65 of her decision the HO in Ski Lake I recommended the applicant be required to develop a Wildlife Habitat Mitigation Plan (WHMP); submit written documentation from ODFW that the WHMP has been completed 32 consistent with ODFW's policies; retain all existing vegetation; and leave the area between the two reservoirs free of fencing and other physical barriers. In response to the HO's findings, the applicant submitted the WHMP prepared by Dr. Wendy Wente. The WHMP recommends a number of measures to protect and enhance wildlife habitat. A summary of those measures is provided below: 1. Preservation of downed logs and standing snags 2. Regular brushing of brush shrub -steppe habitats 3. Plant pastures, areas adjacent to the South Reservoir, and other soil disturbance areas with native shrubs, grasses and forbs 4. Follow ODFW planting specifications, noxious weed management measures, and preferred planting times 5. Use ODFW success criteria as described in Appendix A of the WHMP 6. Assessment by a professional biologist of any alteration of vegetation beyond that prescribed by the WHMP, such as for fire fuels reduction 7. Monitoring and control of weeds and non-native plants 8. Management of western juniper 9. Preservation of live ponderosa pines in the open space areas 10. Prohibition on fire wood cutting or vegetation alteration beyond that prescribed as management for increased habitat value 11. Leash law for domestic dogs 12. Prohibition on livestock 13. One hundred foot building setback from Tumalo Creek for PUD Lots 8-10 14. Motorized boating activities restricted to April 1 through November 30 15. Prohibition of recreational use of off-road motor vehicles in the PUD open space 16. Reduced speed and wildlife crossing signs on roads within the PUD open space 17. Education program for residents and guests 18. Incorporating the WHMP into the CC&Rs for the EMA 19. CC&Rs will require an audit of compliance with WHMP by professional biologist The following ODFW comments are relevant to the proposed after -the -fact applications to authorize construction of the reservoirs: The Department has reviewed the application materials including the Burden of Proof, Wildlife Habitat Management Plan (WHMP) and the Declaration of Protective Covenants, Conditions, and Restrictions (CC&Rs) and has the following comments: In keeping with the Mitigation Policy, the Department requests that KCDG develop an off-site mitigation plan to compensate for the loss of winter range at a ratio of 3:1. An example of an appropriate mitigation strategy would be to work with the Forest Service to improve 314 acres of winter range habitat in proximity to KCDG's property. The Department is concerned about the applicant's proposal to move topsoil from portions of the area preserved as Open Space for wildlife. The stated purpose is for rehabilitating the area around the South Pond but this action has the potential to disturb a large portion of wildlife habitat that may succumb to noxious weeds such as cheatgrass even if reseeded with native plants. The Department recommends that the applicant obtain topsoil for the South Pond from outside the property. If the use is approved on appeal, a condition of approval requiring the applicant to develop an off-site mitigation plan to compensate for the loss of winter range at a ratio of 3:1 should be imposed, consistent with ODFW's comments. 33 The Hearings Officer agrees with ODFW that, if the use is approved on appeal, a condition of approval should be imposed requiring that any topsoil proposed to be used to rehabilitate the area around the South Reservoir shall originate from off-site to avoid the potential of noxious weed invasion and that reseeding with native plants shall be required. Regarding monitoring of the effectiveness of the WHMP: ➢ The Department recommends that the language in section 1.5.2 of the Easement and Maintenance Agreement read as follows "The Administrator shall hire a professional biologist to conduct an audit of the compliance with the Wildlife Habitat Management Plan." ➢ The party implementing the wildlife habitat conservation measures (i.e. Tanager Development L.L.C. or subsequent administrator) should submit results of audit of compliance to the Department for review. (emphasis added). On page 16 of the WHMP, Dr. Wente states that one of the avenues to ensure continued monitoring and implementation of the conservation measures is an audit performed every three to five years. The Hearings Officer finds that, if the proposed use is approved on appeal, to ensure compliance with the WHMP, a condition of approval, requiring Section 1.5.2 of the Easement & Maintenance Agreement (EMA) to be modified to require retention of a professional biologist, should be imposed. The party implementing the wildlife habitat conservation measures should be required to submit the results of audit of compliance to ODFW for review. A condition of approval also should be imposed to require an audit of the conservation measures set forth in the WHMP at least once every three years from the date of approval of the subject applications and to submit the results of audits of compliance to ODFW for review within one month of each audit. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). In Ski Lake I, the HO in that proceeding made the following findings, The Hearings Officer has found existing uses on surrounding land include rural residences, some small-scale farming, and two active surface mines. I find projected uses on surrounding lands would be the same. As discussed in the findings above under the site plan approval criteria in Chapter 18.124, 1 have found the reservoirs and the proposed recreational use on the southern reservoir will not have any impact on nearby mining uses. In addition, I concur with staffs assessment that these uses also will not negatively impact residential or farm uses on the EFU- and Forest -zoned land in the surrounding area because of the distances between the reservoirs and these lands. However, I have found the reservoirs and the proposed recreational use on the southern reservoir do not relate harmoniously to rural residential uses on surrounding land because of the size and appearance of the southern reservoir, and because of scale, intensity and duration of the recreational use. 34 The Hearings Officer finds the site plan approval standard requiring that the proposed uses "relate harmoniously" to existing development on surrounding land is equivalent to the conditional use approval criterion that the proposed uses be "compatible with" existing and projected uses on surrounding properties considering their site, design and operating characteristics, adequacy of transportation access, and natural features and resources. Therefore, for the reasons set forth in the site plan findings above, incorporated by reference herein, 1 find the applicant's proposal also is not compatible with existing and projected uses on surrounding properties. The Ski Lake I HO's findings constitute the final decision of the county on these issues. The proposed reservoirs uses, sizes, appearance of the reservoirs themselves and scale have not changed since that HO's denial. However, the applicant has since developed the WHMP in conjunction with Dr. Wente to address impacts to wildlife and habitat. The applicant also submitted a Landscape Plan to replace the barren landscape around the South Reservoir with native vegetation. For the reasons discussed above, this Hearings Officer finds that the proposed reservoirs will not be compatible with surrounding land uses based on the factors listed in DCC 18.128.015(A), even with the consideration of the off- site mitigation plan, new proposed Landscape Plan and implementation of the WHMP. If this Decision is reversed on appeal, the reviewing body should consider imposing a condition of approval requiring implementation of the WHMP. Compliance with a revised proposed Landscape Plan to prohibit use of soil originating on-site should also be required as a condition of approval. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: The Hearings Officer finds that there are no conditions of approval that may be imposed such that all applicable standards of DCC 18.128 may be met because the private surface mining is not a permitted use in the RR -10 zone. Nonetheless, if this Decision is reversed on appeal, the Hearings Officer makes the following findings on the record before me. 2. Section 18 128 280. Surface Mining of Non -Goal 5 Mineral and Aggregate Resources These uses are subject to the following standards: A. An application shall be riled containing the following information: 1. A detailed explanation of the project and why the surface mining activity is necessary. FINDING: In Ski Lake I, the HO found KCDG's surface mining to create the reservoirs constituted surface mining of non -Goal 5 mineral and aggregate resources, and therefore such surface mining is subject to the standards in this section. As also noted in Ski Lake I, because the surface mining already has taken place, the HO found the applicant must demonstrate that the standards in this section were met before, during, and after the mining, as applicable. The Ski Lake I HO's findings constitute the final decision of the county on these issues. This Hearings Officer adheres to these findings in this Decision. 35 The applicant's burden of proof states the purpose of the surface mining was to convert the reclaimed Klippel mining pit into two reservoirs to store TID water. However, there is no current agreement with TID to store irrigation water and TID is not an applicant. Moreover, the surface mining work preceded any agreement with TID and was not performed at TID's request or on its behalf. Rather, the record shows that the applicant desires the primary (or sole) use of the reservoirs for recreational purposes. 2. A site plan drawn to scale and accompanied by any drawings, sketches and descriptions necessary to describe and illustrate the proposed surface mining. FINDING: The applicant submitted a site plan and narrative depicting and describing the existing and pre-existing conditions on the subject property. The application materials illustrate the size and configuration of the surface mined areas, and the final grades surrounding the reservoirs. B. A conditional use permit shall not be issued unless the applicant demonstrates at the time of site plan review that the following conditions are or can be met: 1. The surface mining is necessary to conduct or maintain a use allowed in the zone in which the property is located. FINDING: In Ski Lake I, the HO found the surface mining to create the reservoirs is a conditional use in the RR -10 Zone under Section 18.60.030(W). Here, however, TID is not an applicant and there is no agreement between TID and the applicant to store irrigation water. As set forth above, I find that the surface mining is not necessary to conduct or maintain a use allowed in the zone in which the property is located. 2. Erosion will be controlled during and after the surface mining. FINDING: In Ski Lake I, the HO found that the record did not include detailed information about what, if any, erosion control measures were employed during construction and whether they were effective. For the subject applications, the applicant's burden of proof states that Taylor NW completed the reservoir work including erosion controls. Both reservoirs and their liners are still in place and intact. Finally, the applicant states no complaints were received regarding adverse conditions off-site due to erosion. Staff conducted a site visit and reviewed the site plan prior to preparing his staff report. Thereafter, the Hearings Officer and Staff conducted a site visit on October 26, 2017. Based on the two site visits, there appears to be no significant erosion of the banks associated with the reservoirs. 3. The surface mining activity can meet all applicable DEQ noise control standards and ambient air quality and emission standards. FINDING: Because the surface mining to create the reservoirs has been completed, the HO in Ski Lake I could not review any proposed noise and air quality control measures, nor is this Hearings Officer able to do the same. The applicant states no complaints were received regarding noise or air quality, and there is no active code enforcement case on these issues. 4. Sufficient water is available to support approved 36 methods of dust control and vegetation enhancement. FINDING: Similar to the above findings, the HO in Ski Lake I was not able to review any dust control measures associated with construction. The applicant states no complaints were received regarding dust control, and there is no active code enforcement case on this issue. If this Decision is reversed on appeal, the Hearings Officer finds that no conditions of approval may be required, or would be effective, because the work has been completed. 5. The surface mining does not adversely impact other resources or uses on the site or adjacent properties, including, but not limited to, farm use, forest use, recreational use, historic use and fish and wildlife habitat as designed or through mitigation measures required to minimize these impacts. FINDING: As noted above, the HO in Ski Lake I found the reservoirs will not have any impacts on farm uses, forest uses, or surface mining activities. As described in the concurrent applications for the ROF, approval of the reservoirs will allow the applicant to establish recreational uses on-site. There are no known historic resources on-site. As detailed previously, the reclaimed mining site included revegetation of the mine and associated slopes. The HO in Ski Lake I found that these revegetated areas were removed during construction of the South Reservoir. In response, the applicant submitted the WHMP and Landscape Plan to address impacts to wildlife habitat. As set forth in the findings above, the Hearings Officer finds the WHMP and Landscape Plan (revised to prohibit use of on-site soils) could sufficiently mitigate impacts to wildlife habitat and should be required as conditions of approval if this Decision is reversed on appeal. C. If the surface mining actively involves the maintenance or creation of man made lakes, water impoundments or ponds, the applicant shall also demonstrate, at the time of site plan review, that the following conditions are or can be met: 1. There is adequate water legally available to the site to maintain the water impoundment and to prevent stagnation. FINDING: KCDG's surface mining was completed to create two reservoirs, and therefore the standards in this paragraph apply. This subparagraph requires the applicant to demonstrate there is water "legally available to the site" to maintain the reservoirs. The applicant's burden of proof states KCDG has filed for a groundwater permit to provide water to be impounded by the reservoirs. The HO in Ski Lake I made the following findings: The Hearings Officer finds that where, as here, TID must acquire a state agency permit in order to store water in the reservoirs, and there is no evidence in the record that TID is legally prohibited from obtaining such a permit, the county may impose a condition of approval requiring TID obtain a WRD permit without determining that it is feasible to do so. Wal-Mart Stores v. City of Bend, 52 Or LUBA 261(2006); Bouman v. Jackson County, 23 Or LUBA 626 (1992). Therefore, 1 find that if the applicant's proposal is approved on appeal, it should be subject to a condition of approval requiring the property owners to submit to the Planning Division written documentation WRD that TID has all necessary permits to store 37 its water in the reservoirs before commencing recreational use on the southern reservoir. As of the date of this Decision, there is no evidence there is adequate water legally available to the site to maintain water impoundment and to prevent stagnation. If this Decision is reversed on appeal, a condition of approval should be imposed requiring the applicant to submit proof of legally available water prior to initiating use of the reservoirs. 2. The soil characteristics or proposed lining of the impoundment are adequate to contain the proposed water and will not result in the waste of water. FINDING: Both reservoirs are lined and, according to the applicant, are still in pristine condition. Neither Staff nor the Hearings Officer noted any obvious wear or damage to the liners during the site visits. 3. Where the impoundment bank slope is steeper than three feet horizontal to one foot vertical, or where the depth is six feet or deeper, the perimeter of the impoundment is adequately protected by methods such as fences or access barriers and controls. FINDING: In Ski Lake I, the HO stated the record indicated the depth of the reservoirs is greater than six feet. Therefore, this subsection requires "perimeter fencing, access barriers or controls." The applicant argued in Ski Lake I that no perimeter fencing is necessary because "access controls" are in place — i.e., private ownership of the reservoirs and their location on private property not accessible to the public. The HO agreed with the applicant that perimeter fencing is not necessary or appropriate. This Hearings Officer finds that the factual circumstances concerning this criterion have not changed. Accordingly, I adhere to that finding here. 4. The surface mining does not adversely affect any drainages, all surface water drainage is contained on site, and existing watercourses or drainages are maintained so as not to adversely affect any surrounding properties. FINDING: The record shows that there were no known drainages on the subject property after completion of the mining site reclamation. Due to the slopes created for the reclamation, all runoff in and around the mining pit would have drained to the bottom of the mining pit. Based on the site visit of Staff and this Hearings Officer, I find this condition still exists within the reservoirs. The grade of the land surrounding the reservoirs will cause runoff to continue to be directed into the reservoirs. The reservoirs and drainage patterns have been maintained to not adversely affect surrounding properties. If this Decision is reversed on appeal, a condition of approval should be imposed requiring continued maintenance of the reservoirs and current grading and slopes. D. Limitations 1. Excavation does not include crushing or processing of excavated material. FINDING: KCDG received a temporary use permit to crush excavated material for purposes of road building (TU -14-8). The HO in Ski Lake I found there was nothing in that record that indicates crushing was involved in the surface mining to create the reservoirs. 011 There is no new evidence that would change such a finding. 2. A permit for mining of aggregate shall be issued only for a site included on the County's non-significant mineral and aggregate resource list. FINDING: As part of this proposal, the applicant requests approval for the subject property to be included on the county's non-significant mineral and aggregate resource list. As set forth above, the Hearings Officer approves this request. 3. Hours of operation shall be 7.00 a.m. to 6:00 p.m. Monday through Saturday. No surface mining activity shall be conducted on Sundays or the following legal holidays: New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. FINDING: Because the surface mining to create the reservoirs has been completed, the time restrictions in this subsection cannot be imposed. This criterion is no longer applicable. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: The Hearings Officer finds that, if the Decision is reversed on appeal, these standards may be met by the imposition of all of the conditions of approval described above. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the Applicant's application for conditional use approval and APPROVES the Applicant's PAPA application. Stephanie Marshall Hicks, Hearings Officer Dated this 25th day of January, 2018 39 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247 -17 -000636 -CU 247 -17 -000637 -TP 247 -17 -000639 -CU 247 -17 -000640 -SP 247 -17 -000641 -LM HEARING DATE: October 23, 2017, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97701 PROPOSAL: The applicant proposes to establish a recreation -oriented facility' (ROF) requiring a conditional use permit (247 -17 -000636 -CU), site plan review, and landscape management review. The ROF is proposed as a ski lake (South Reservoir) and for passive recreational uses including non -motorized boating and swimming (North Reservoir). The applicant also proposes to establish a 10 -lot planned unit development (PUD) requiring a conditional use permit (247 -17- 000627 -CU), surface mining impact area review, and tentative plan review. APPLICANT/ OWNER: KC Development Group, LLC APPLICANT'S ATTORNEY: Ken Katzaroff KC Development Group, LLC 63560 Johnson Road Bend, OR 97703 STAFF: Anthony Raguine, Senior Planner HEARINGS OFFICER SITE VISIT: October 26, 20172 In the Board of County Commissioners' decision on land use file numbers 247 -14 -000 -238 -PS, 247-14-000274-A, 247-14-000452-A, and 247-14-000453-A (TID Land Use Compatibility Statement), the Board found that only the South Reservoir is a "recreation facility requiring large acreage", which consequently requires conditional use permit approval. The Board found the North Reservoir is not a "recreation facility requiring large acreage", and does not require conditional use permit approval. The Hearings Officer adheres to these findings in this Decision. 2 The Bishops objected to the timing of the site visit report, which occurred on November 7, 2017. They requested that the record be left open to "rebut" the report. The Hearings Officer is not a RECORD CLOSED: December 4, 2017 I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.04, Definitions Chapter 18.56, Surface Mining Impact Area Combining Zone — SMIA Chapter 18.60, Rural Residential Zone — RR10 Chapter 18.84, Landscape Management Combining Zone — LM Zone Chapter 18.88, Wildlife Area Combining Zone — WA Zone Chapter 18.116, Supplementary Provisions Chapter 18.124, Site Plan Review Chapter 18.128, Conditional Use Title 17 of the Deschutes County Code, Subdivision and Partition Ordinance Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans Chapter 17.36, Design Standards Chapter 17.44, Park Development Chapter 17.48, Design and Construction Specifications Title 22, Deschutes County Development Procedures Ordinance OAR -660-004-0040 ORS 92.192 II. BASIC FINDINGS: A. LOCATION: The subject property includes a number of properties as described below: 1. 63344 Palla Lane; Assessor map 17-11-13, tax lot 601 2. 63580 Johnson Road; Assessor map 17-11-13, tax lot 817 3. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820 4. 19276 Klippel Road; Assessor map 17-11-13, tax lot 823 5. 63305 Palla Lane; Assessor map 17-11-13, tax lot 824 6. 63410 Palla Lane; Assessor map 17-11-13, tax lot 825 7. 63380 Palla Lane; Assessor map 17-11-13, tax lot 826 8. 19210 Klippel Road; Assessor map 17-11-13, tax lot 828 9. No assigned address; Assessor map 17-11-13, tax lot 829 10. 19214 Buck Drive; Assessor map 17-11-13, tax lot 2700 11.63566 Johnson Road; Assessor map 17-11-14, tax lot 11401 12. 19190 Klippel Road; Assessor map 17-11-14, tax lot 11600 B. ZONING: The subject property is zoned Rural Residential (RR10) and is within the Wildlife Area (WA) Combining Zone protecting the Tumalo Deer Winter Range. party to the appeals and not bound by the record timelines established at the hearing. No new "evidence" is presented in the site visit report. The request is denied. 2 Portions of the property are located within the Landscape Management (LM) Combining Zones associated with Tumalo Creek to the east and Johnson Road to the west. Portions of the property are located in a Surface Mining Impact Area (SMIA) Zone due to the property's proximity to Surface Mine Site 293 (17-11-12, tax lots 600, 700 and 800)3. The property is designated Rural Residential Exception Area (RREA) on the Deschutes County Comprehensive Plan map. C. LOT OF RECORD: The subject property is comprised of legal lots of record pursuant to lot of record determinations LR -90-158, LR -05-8, 247 -14 -000342 -LR and 247 -16 -000761 -LR. The boundaries of most of the legal lots of record have been modified to their current configuration through numerous property line adjustments including LL -06-7, LL -08-74, LL -08-75, LL -08-76, LL -11-4, LL -11-5, LL -11-6, LL -11-7, LL -11-18, LL -13-46, LL -13-47, LL -13-48, LL -13-49, LL -13-51, LL -13-52, 247 -14 -000307 -LL). D. SITE DESCRIPTION: The property is approximately 88 acres in size and is irregular in shape. Tax lots 824 and 828 were the site of the Klippel Surface Mine (former Surface Mine Site 294) previously zoned Surface Mining (SM). When mining and reclamation of Site 294 was completed, the mine was rezoned to RR10. The property has approximately 55 acres of groundwater irrigation water rights administered by the Tumalo Irrigation District (TID). The property is now developed with two man-made, lined reservoirs filled with water. The applicant performed this work in 2014 on two surface mining pits to re -grade and re -contour the pits. It erroneously believed at that time that the work was exempt from permitting requirements. Primary access to the property is from a private driveway connecting to Johnson Road. There is also a "ditch rider" road near the west boundary on the property that provides access to TID irrigation facilities. The smaller of the two reservoirs (North Reservoir) is located in the northeastern portion of tax lot 828 and the western portion of tax lot 820, is round in shape, and has a capacity of approximately 57 acre-feet of water. The North Reservoir has been improved with two boat ramps, one at each end, and is proposed in a separate application to be used for passive recreation including swimming and non -motorized boating. The larger reservoir (South Reservoir) is located on tax lots 824 and 828 and has a capacity of approximately 68 acre-feet of water. The South Reservoir is long and narrow and has two round man-made gravel and dirt islands, one at each end, to facilitate waterskiing. At its north end, the South Reservoir has a small harbor consisting of a boat ramp, dock, and pilings to support three proposed boat garages. Near the southern end of the South Reservoir are a weir and a head gate that could operate to regulate the flow of water from TID's piped irrigation canal (Tumalo Feed Canal) into the South Reservoir. The undeveloped portion of the property has a vegetative cover of scattered pine and juniper trees and native brush and grasses. The area immediately surrounding both Reservoirs is devoid of vegetation. 3 The surface mine known as the Cake Pit, the east, is governed by Title 19, which does not include a SMIA Combining Zone. Therefore, no portion of the property is burdened by a SMIA Zone associated with the Cake Pit. After the subject property was mined and reclaimed, it was rezoned to RR10. Reclamation included grading, re -contouring and re -seeding with pasture grasses to prevent erosion. E. PROPOSAL: The applicant proposes to establish a recreation -oriented facility4 (ROF) requiring a conditional use permit (247 -17 -000636 -CU), site plan review, and landscape management review. The ROF approval requested for the South Reservoir is proposed to be used as a ski lake. The applicant also requests approval of an ROF to allow passive recreational uses of the North Reservoir. Finally, the applicant proposes to establish a 10 -lot planned unit development (PUD) requiring a conditional use permit (247 -17 -000627 -CU), surface mining impact area review, and tentative plan review. The applicant proposes the following restrictions on the South Reservoir: 1. Prohibit motorized activity during Winter Deer Range season; 2. Only one motorized boat may be on the South Pond at a time; a. Other boats must be stored in the Boathouse or in the harbor area. 3. No jet skis allowed; 4. Operational hours limited to 7:00am to 10:00pm; 5. Adhere to all Deschutes County noise ordinance standards, found at DCC Chapter 8.08; 6. Boat restrictions include: a. Inboard engines only; b. Self-contained engines with internal oil lubrication systems; C. Stock mufflers or quieter; d. Direct drive or V -drive transmission; e. No two-stroke motors (prevents oil contamination); 7. No alcohol to be allowed on boats or used by skiers; and 8. All motor boat operators must carry the Oregon mandatory boater education card. Per an email from the applicant dated October 12, 2017, all property line adjustment applications (247 -17 -000625 -LL, 626 -LL, 628 -LL, 630 -LL, 631 -LL, and 632 -LL) have been withdrawn.5 The applicant concurrently applied for a conditional use permit (247 -17 -000627 - CU) and Comprehensive Plan amendment (247 -17 -000629 -PA) to authorize surface mining in conjunction with an irrigation district to create reservoirs and to add the properties containing the reservoirs to the county's non-significant mineral and aggregate inventory. The Hearings Officer's Decision on these applications is addressed in a separate Final Decision issued on January 26, 2018. The Hearings 4 In the Board of County Commissioners' decision on land use file numbers 247 -14 -000 -238 -PS, 247-14-000274-A, 247-14-000452-A, and 247-14-000453-A (TID Land Use Compatibility Statement), the Board found that only the South Reservoir is a "recreation facility requiring large acreage", which consequently requires conditional use permit approval. The Board found the North Reservoir is not a "recreation facility requiring large acreage", and does not require conditional use permit approval. 5 On October 13, 2017, the applicant applied for a new property line adjustment (247 -17 -000851 - LL) that is separate from this proposal. 4 Officer denied the conditional use permit application for surface mining and granted the requested PAPA. F. SURROUNDING LAND USE: The subject property is adjacent to the Klippel Acres Subdivision which is zoned RR10 and WA and developed with rural residences. Tumalo Creek adjoins the property to the east along tax lots 601, 825, 826 and 827. To the west is Johnson Road and the Saddleback Subdivision zoned RR10 and WA and developed with rural residences. Also to the west are TID's piped Tumalo Feed Canal and the associated ditch rider road. Two active surface mines are located within a quarter mile of the subject property. Approximately 1,700 feet to the north is SM Site 293. Approximately 350 feet to the east is SM Site 308, known as the Cake Pit. Land zoned Exclusive Farm Use (EFU) is located to the north and is engaged in small-scale farming consisting of hay production and livestock grazing on irrigated pasture. To the northwest are lands zoned Forest Use (F2) that are primarily undeveloped. Aerial photographs provided in the county's GIS show surrounding land is characterized by a moderate to dense tree cover as well as more open pasture areas. G. PUBLIC AGENCY COMMENTS: The following comments were received from public agencies. Deschutes County Building Division. The Deschutes County Building Safety Divisions code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Code Enforcement. After reviewing each of the properties listed [in the Notice of Application], I can confirm that there are no pending code enforcement cases at this times Deschutes County Environmental Soils Division. Each lot or parcel of the proposed subdivision will require a complete and approved site evaluation before final plat approval. Detailed locations of proposed lot lines, test pit locations and proposed systems will be necessary to properly complete each evaluation. Proposed lots that may be previously existing will need complete approved site evaluations as well. Deschutes County Senior Transportation Planner. I have reviewed the transmittal materials for 247-17-000625-LL/626-LL/628-LL/632LL/634-LL/636-CU/637- TP/639-CU/640-SP/641-LM to develop a water ski lake and 10 -lot subdivision in the Rural Residential (RR -10), Surface Mining (SMIA), Landscape Management (LM), and Wildlife Area zones at the following location on 63344, 63305, 63410, and 63380 Palla Lane; 19436; 19276;19210; and 19190 Klippel Road; 63580 and 63566 Johnson Road;, 19214 Buck Drive; and one lot with no assigned addressed 6 In June of 2016, TID and KCDG informed the county the agreement between TO and KCDG to use the reservoirs for irrigation district purposes was terminated. KCDG also agreed to cease motorized boating activity. The county closed the code enforcement case on the property. 5 aka 17-11-13, Tax Lots 601, 817, 820, 823, 824, 825, 826, 828,829, 2700, 11600 and 17-11-14, Tax Lot 11401. 1 have reviewed the submitted traffic analysis and agree with its methodology, conclusions, and recommendations with one minor exception. On page 5 of the June 23, 2017, Site Traffic Report, Kittelson uses a 45-50 mph speed on Johnson Road when assessing sight distance. The County's practice has been to use 55 mph for other rural roads when reviewing sight distance. Staff requests the applicant redo the sight distance assessment based on 55 mph. The County agrees 25 mph for Buck Drive is appropriate. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable SDC is $3,189 ($3,937 X 0.81). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Deschutes County Road Department I have reviewed the application materials for the above -referenced file number, proposing a recreation facility and a 10 -lot subdivision for a tract of land including on 63344, 63305, 63410, and 63380 Palla Lane; 19436, 19276, 19210, and 19190 Klippel Road; 63580 and 63566 Johnson Road;,19214 Buck Drive; and one lot with no assigned addressed (Tax Lot #17111300829). My comments are as follows: All proposed private roads and public road improvements shall be designed and constructed in accordance with Deschutes County Code (DCC) 17.48 and American Association of State Highway and Transportation Official standards. Surface drainage systems shall be designed to prevent adverse impacts to public streets (DCC 18.124.060(F)). Road construction plans, which will include the intersection improvements at the intersections of the private roads with Johnson Road and Buck Drive, shall be approved by County Road Department prior to commencement of construction within the County right of way (DCC 17.48.060). The construction plan review fee of $250 shall be received by the County Road Department prior to approval. A copy of the final plans with all required signatures shall be provided to the County Road Department upon approval by all agencies. The applicant shall construct all road improvements under the inspection and approval of the County Road Department (DCC 17.48.200). The applicant may provide a letter to the Department from a professional engineer certifying that the improvements were constructed in accordance with the improvement plans approved by the County (DCC 17.40.040, ORS 92.097). Page 5 of the June 23, 2017 Site Traffic Report by Kittelson & Associates incorrectly states the required minimum intersection sight distances for the proposed private road connecting to Johnson Road. The design speed for R Johnson Road shall be 55 MPH, and, pursuant to Tables 9-6 and 9-8 of A Policy on Geometric Design of Highways and Streets (AASHTO, 2011), the required minimum intersection sight distances are 610 feet for a left turn from stop and 530 feet for a right turn from stop. The applicant will need to confirm that the minimum sight distance requirements are met. Bend Fire Department. Project #: 247-17-000625, 626, 628, 632, 634, 636, 637, 639, 640, 641 Subject: Recreation facility (water ski lake), and 10 -lot residential subdivision. Palla Lane, Johnson Road, Klippel Road, Buck Drive, and unassigned addresses included. From: Jeff Bond, Bend Fire Department Date: 8/21/17 Note: These comments are for residential and commercial uses. Use sections as applicable for structures as developed. FIRE APPARATUS ACCESS ROADS: Approved vehicle access for fire fighting shall be provided to all construction or demolition sites. Vehicle access shall be provided to within 100 feet of temporary or permanent fire department connections. Vehicle access shall be provided by either temporary or permanent roads, capable of supporting vehicle loading under all weather conditions. Vehicle access shall be maintained until permanent access roads are available. 2014 OFC 3310.1 Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility. 2014 OFC 503.1.1 Fire apparatus roads shall have an unobstructed width of not less than 20 feet, exclusive of shoulders, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical .clearance of not less than 13 feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the minimum width shall be 26 feet, exclusive of shoulders. Traffic calming along a fire apparatus road shall be approved by the fire code official. Approved signs or other approved notices or markings that include the words NO PARKING -FIRE LANE shall be provided for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to 32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3 Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced (asphalt, concrete or other approved driving surface) as to provide all weather driving capabilities. Inside and outside turning radius shall be approved by the fire department. All dead-end turnarounds shall be of an 7 approved design. Bridges and elevated surfaces shall be constructed in accordance with AASHTO HB -17. The maximum grade of fire apparatus access roads shall not exceed 10 percent. Fire apparatus access road gates with electric gate operators shall be listed in accordance with UL325. Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements of ASTM F 2200. A Knox® Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4 Buildings exceeding three stories or 30 feet in height shall have at least two means of fire apparatus access for each structure. Buildings or facilities having a gross building area of more than 62,000 square feet shall be provided with two separate and approved fire apparatus access roads. Where two access roads are required, they shall be placed a distance apart equal to not less than one half the length of the maximum diagonal dimension of the property or area to be served, measured in a straight line between accesses. 2014 OFC D104 Buildings or portions of buildings or facilities exceeding 30 feet in height above the lowest level of fire department vehicle access shall be provided with approved fire apparatus access roads capable of accommodating fire department aerial access apparatus. Overhead utility and power lines shall not be located within the aerial apparatus access roadway. 2014 OFC D105 Multiple -family residential developments have more than 100 dwellings and one- or two-family residential developments where the dwelling units exceed 30 shall be provided with separate and approved fire apparatus access roads. 2014 OFC D106, D107 FIRE PROTECTION WATER SUPPLIES: An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. 2014 OFC 507.1 Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. Where a portion of the facility or building hereafter constructed or moved into or within the jurisdiction is more than 400 feet from a hydrant on a fire apparatus road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official. For Group R-3 and Group U occupancies the distance requirement shall 600 feet. For buildings equipped throughout with an approved automatic sprinkler system installed in accordance with Section 903.3.1.1 or 903.3.3.1.2, the distance requirement shall be 600 feet. Fire hydrants shall be provided along required fire apparatus roads and adjacent public streets. The minimum number of fire hydrants shall not be less than that listed in table C105.1 of the 2010 OFC. Existing fire hydrants on public streets are allowed to be considered as available. Existing fire hydrants on adjacent properties shall not be considered available unless fire apparatus access roads extend 8 between properties and easements are established to prevent obstruction of such roads. The average spacing between fire hydrants shall not exceed that listed in Table C105.1 of the 2014 OFC. ORS 811.550(16) prohibits parking within 10 feet of a fire hydrant. Provide approved signs or other approved markings to prohibit parking within 10 feet of a fire hydrant. OAR 860-024-0010 limits the placement of a fire hydrant a minimum of 4 feet from any supporting structure for electrical equipment, such as transformers and poles. Maintain a minimum 4 foot clearance of fire hydrants to any supporting structure for electrical equipment. Where fire hydrants are subject to impact by a motor vehicle, guard posts or other approved means shall comply with Section 312 of the 2014 OFC. In areas without water supply systems, the fire code official is authorized to use NFPA 1142 in determining fire flow requirements. 2014 OFC 8107.1 OTHER FIRE SERVICE FEATURES New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address numbers shall be visible under low light conditions and evening hours. Provide illumination to address numbers to provide visibility under all conditions. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388-6309 during normal business hours. 2014 OFC 505.1 A KNOX-BOX® key vault is required for all newly constructed commercial buildings, facilities or premises to allow for rapid entry for emergency crews. A KNOX@ Key Switch shall be provided for all electrically operated gates restricting entry on a fire apparatus access road. A KNOX@ Padlock shall be provided for all manually operated gates restricting entry on a fire apparatus road and security gates restricting access to buildings. 2014 OFC Section 505 Emergency responder radio coverage must be provided in all buildings with one or more basement or below -grade building level, any underground building, any building more than five stories in height, any building 50,000 square feet in size or larger. Approved radio coverage for emergency responders within the building is based upon the existing coverage levels of the public safety communication system of the City of Bend Fire Department at the exterior of the building. 2014 OFC Section 510 Fire department connections shall be installed in accordance with the NFPA standard applicable to the system design. With respect to hydrants, driveways, buildings and landscaping, fire department connections shall be so located that fire apparatus and hose connected to supply the system will not obstruct access to buildings for other fire apparatus. The location of the fire department connections shall be approved by the fire chief. Immediate access to fire department connections shall be maintained at all times and without obstruction by fences, bushes, trees, walls or any other fixed or moveable object. Access to fire department connections shall be approved by the fire chief. 2014 OFC Section 912 Codes and Referenced Standards: 2014 Oregon Fire Code (OFC) 2012 NFPA 1142 Oregon Department of Fish and Wildlife. The purpose of this letter is to provide Oregon Department of Fish and Wildlife (Department) comments on the conditional use application from KC Development Group (KCDG) to establish a recreational facility (water ski lake) and 10 -lot subdivision on 104.68 acres. The Department is mandated by State Statute to manage fish and wildlife resources to prevent serious depletion of indigenous species and to provide optimum recreational and aesthetic benefits for present and future generations of the citizens of Oregon (ORS 496.012). Department comments on previous land use applications for this property can be found in letters dated June 29, 2015 and September 17, 2015. As stated in these letters, the property for which the KCDG has submitted an application is within the Deschutes County Wildlife Area Combining Zone as well as the Tumalo Deer Winter Range. Deer and other wildlife in this area are particularly vulnerable to human disturbance during the winter when food resources are scarce and temperatures are often below freezing. Thus, the concerns that the Department outlined previously in the above letters still exist. In addition, under the Department's Fish and Wildlife Habitat Mitigation Policy (OAR 635-415), deer/big game winter range is classified as Category 2. Category 2 habitat is defined as "essential and limited" and its loss should be mitigated with a goal of providing "no net loss of habitat quantity or quality and to provide a net benefit of habitat quantity or quality". The Department has reviewed the application materials including the Burden of Proof, Wildlife Habitat Management Plan (WHMP) and the Declaration. of Protective Covenants, Conditions, and Restrictions (CC&Rs) and has the following comments: In keeping with the Mitigation Policy, the Department requests that KCDG develop an off-site mitigation plan to compensate for the loss of winter range at a ratio of 3:1. An example of an appropriate mitigation strategy would be to work with the Forest Service to improve 314 acres of winter range habitat in proximity to KCDG's property. Section 4.2.6 of CC&Rs under LOTS AND HOMES should be amended to state that all fencing must comply with the fencing standards in Deschutes County Code 18.88.060. Section 4.5 of CC&Rs under LOTS AND HOMES should be amended to state that native landscaping should be >50% of each residential lot. In 10 addition, Exhibit AA (Landscape Plan) should be amended to deemphasize the use of turf around homes. Section 4.10 of CC&Rs under LOTS AND HOMES should be amended to state that allowing domestic animals to harass wildlife is prohibited. Section 5.2 of CC&Rs under OPEN SPACE should be amended to state that domestic animals in the Open Space shall be leashed. The Department is concerned about the applicant's proposal to move topsoil from portions of the area preserved as Open Space for wildlife. The stated purpose is for rehabilitating the area around the South Pond but this action has the potential to disturb a large portion of wildlife habitat that may succumb to noxious weeds such as cheatgrass even if reseeded with native plants. The Department recommends that the applicant obtain topsoil for the South Pond from outside the property. The educational program referenced in the WHMP for residents and guests of the Tanager Planned Development about wildlife and habitat maintenance should be presented to the Department for review prior to finalization. Regarding monitoring of the effectiveness of the WHMP: ➢ The Department recommends that the language in section 1.5.2 of the Easement and Maintenance Agreement read as follows "The Administrator shall hire a professional biologist to conduct an audit of the compliance with the Wildlife Habitat Management Plan". ➢ The party implementing the wildlife habitat conservation measures (i.e. Tanager Development L.L.C. or subsequent administrator) should submit results of audit of compliance to the Department for review. Finally, as this development will be occurring in deer winter range there will likely be conflicts between wildlife and the residents of the subdivision. According to the Department's Wildlife Damage Policy (2008), the Department may deny assistance for control of damage if a "landowner created the wildlife conflict situation through a categorical change in the use of the land since 1987 in recognized significant wildlife habitat". Thus, the Department will not respond to future wildlife damage complaints from residents of the subdivision. No comments were received from the following agencies. Deschutes County Property Address Coordinator, Oregon Department of Geology and Mineral Industries, Tumalo Irrigation District, and Watermaster— District 11. H. PUBLIC COMMENTS: The Planning Division sent notice of this application to property owners within 250 feet of the subject property. In addition, the applicant submitted a Land Use Sign Affidavit indicating the land use action sign was posted on the property on September 6, 2017. A number of emails and letters were received in response to the mailed and posted notices. Public comment was also taken at the hearing on the applications and in the open record period following the public hearing, which closed on December 4, 2018. Because many of the correspondences did not specify which file numbers the comments were directed to, a summary of all comments received for this 11 application and the concurrent applications to establish the ROF and PUD are set forth herein. .•. Design takes into consideration open space, flora, fauna, water needs, firefighting needs, and neighboring properties Beautification and appropriate re -use of mining pits No use of public or irrigation district funds to construct Model for private/public partnerships Increased wildlife presence in and around both reservoirs • Integrity of the applicants • Sound study proves noise impacts will be minimal Noise from vehicles on Johnson Road, nearby surface mining activities, and airplanes are louder than the noise generated from ski boats Protection of private property rights Residential development will provide additional buffering from nearby surface mining activities Opposition TO is not an applicant and the reservoirs were not built for the purpose of re -regulation Both reservoirs and the westerly road? were built without proper land use approval Noise impacts from water skiing activity New private roads in a rural setting, specifically the proposed new access from Buck Drive across the Hammack property to the project Negative impact to property values Danger to children due to new roads and traffic, and the ski lake Loss of trees and habitat • Impact to wildlife Inappropriate intensity and density of development in a rural setting Presence of gnats due to proximity of both reservoirs Increased water evaporation due to large surface area of reservoirs Applications cannot be processed because they will not cure the previous unpermitted construction activity Applications cannot be processed because of open code enforcement cases on the subject property • Ski lake is an inappropriate use of water in a desert environment Proposed residences may conflict with existing surface mining activity With respect to the opposition's comments, the following alleged concerns are not addressed to any applicable standard of review and/or are unsupported by competent and non -speculative evidence, and/or misapply applicable law: The westerly road was constructed pursuant to temporary use permit TU -14-8 which allowed rock crushing on the subject property in association with private road maintenance and landscaping. 12 1. New private roads are inconsistent with rural setting 2. Negative impacts to property values 3. Danger to children 4. Presence of gnats 5. Increased water evaporation 6. Open code enforcement cases (no evidence) 7. Applications cannot be processed because they will not cure previously unpermitted construction The Hearings Officer addresses the comments tied to applicable criteria in the Decision below. The alleged concerns addressed solely to the surface mining to create the reservoirs are addressed in the separate Final Decision on Land Use file numbers 247- 17 -000627 -CU and -629-PA. LAND USE HISTORY: The land use history of the subject property is extensive. The Hearings Officer (HO) in the„ Land Use/Code Enforcement Historysection of her decision for land use file numbers 247 -15 -000226 -CU, 247 -15 -000227 -CU, 247 -15 -000228 -LM, 247 -15 -000383 -MA, 247 -15 -000384 -SP, and 247-15- 000385-V (hereafter referred to as `Ski Lake I') provided a chronology and context for the subject property. This history is incorporated into this Hearing Officer's Decision. Klippel Surface Mine. The record indicates former SM Site 294 was fully mined and reclaimed, and received reclamation approval from the Oregon Department of Geology and Mineral Industries (DOGAMI) on September 27, 2005. In May of 2007, Harris Kimble applied for a plan amendment, zone change and goal exception to redesignate SM Site 294 from Surface Mining and Agriculture to RREA, and to rezone the site from SM and Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-TRB) to RR - 10. In a decision dated November 8. 2007, this Hearings Officer approved the plan amendment, zone change and goal exception (PA -07-2, ZC-07- 2). In my decision, I described the rezoned property as follows: "The subject property is approximately 160 acres in size and very irregular in shape. A significant portion of the property has been disturbed due to previous surface mining and reclamation activities. The disturbed area consists of reclaimed extraction pits and berms created from overburden removed from the extraction sites. The undisturbed portions of the property have varying topography and a mixture of native vegetation including scattered stands of pine and juniper trees, as well as native brush and grasses, and pasture grasses seeded as part of the surface mine reclamation. Part of the eastern border of the subject property is located in the canyon of Tumalo Creek and includes steep slopes and rock outcrops. The record indicates the subject property has 58.91 acres of irrigation water rights administered by TID .... The record indicates some of these water rights currently are leased for in - stream use. There is a small irrigation ditch that traverses the subject property within an easement.” 13 2013. KC Development Group (hereafter "KCDG') purchased the majority of the subject property in October of 2013. On October 8, 2013, staff from the county's Community Development Department (CDD) met with representatives of KCDG and their then-attorney Tia Lewis to discuss development of the subject property with a residential cluster development. No development proposal was submitted at that time. 2014. On March 18 and 19, 2014, CDD received three code violation complaints alleging that rock crushing, construction of a lake with a boat dock and fuel tanks, and use of a private road were occurring on the subject property without required land use approval. These complaints were investigated by Deschutes County Code Enforcement Technician Tim Grundeman who concluded that no code violations had occurred. KCDG applied for a temporary use permit to allow rock crushing on the subject property in association with private road maintenance and landscaping. On April 2, 2014, CDD issued a temporary use permit for such use (TU-14-8). On June 4, 2014, CDD received another code violation complaint related to "unpermitted activities" on the property. On June 13, 2014, CDD staff, Deschutes County Assistant Legal Counsel John Laherty, representatives of TID, TID's attorney William Hopp, and TID's and KCDG's attorney Elizabeth Dickson met to discuss the need and process for obtaining a Land Use Compatibility Statement (LUCS) for TID's request to the Oregon Water Resources Department (WRD) for permission to transfer the place of use of TID's water storage right from Upper Tumalo Reservoir to the subject property. Ms. Dickson advised CDD staff that an application for a residential cluster development on the subject property would be submitted in the future, potentially within six months. On or about June 16, 2014, CDD Director Nick Lelack determined to treat any request for a LUCS submitted by TID as a "land use action" and to process it according to the county's procedures therefor. On June 11, 2014, TID submitted to WRD an application (T-11833) to transfer the place of use of a portion of TID's water storage right from Upper Tumalo Reservoir to the two reservoirs on the subject property. On June 17, 2014, KCDG submitted applications for a building permit (247- 14-003315-STR) and an electrical permit (247-14-003315-ELEC-01) for a boat house and boat slip on the southern reservoir. CDD staff advised KCDG that the county could not sign off on the building or electrical permit while any LUCS request was pending. On June 19, 2014, CDD received a letter from Ken Rieck, TID Manager, explaining the need for the transfer in place of use of its water storage right and TID's belief that the proposed transfer is a use permitted outright in the RR-10 Zone. On July 25, 2014, John Laherty sent a letter to Elizabeth Dickson stating in relevant part. ".. JTjo the extent KC Development Group LLC has expended, or intends to expend, resources to create reservoirs, install footings for a dock or boathouse, or otherwise perform work on the subject property that does not 14 [sic] require County approval, it does so at its own risk and without any guarantee that future County permits or approvals — including, without limitation, land use approval for construction of a cluster development or recreational lake, or building division approval for construction of a boat house or dock — will be granted. The County has encouraged KC Development Group LLC and its principals to apply for necessary land use approvals first — before devoting significant resources to improving the property— so as to avoid the risk of commencing projects it will ultimately be unable to complete. Your client has chosen to disregard this advice. Please inform your client (again) that Deschutes County will review any future land -use or building permit application on its own merits, and the County's decision on such application will be governed solely by consideration of appropriate criteria. Your client's decision to expend resources on improvements prior to obtaining necessary County approval for his intended development project will not be given undue weight or consideration in this process." On July 25, 2014, CDD staff and county legal counsel conducted a site visit to the subject property at the request of neighboring property owners. On August 4, 2014, TID submitted its LUCS request on a form provided by WRD. The form stated TID intended to submit to WRD an application for a "water right transfer— storage,"and described the intended use of the water in relevant part as follows: "This is an intra -district transfer in place of use of 108 a.f. [acre feet] of Tumalo Creek Water. TID to TID (Storage water). The transfer of this storage water is necessary for the operation and maintenance of our irrigation system, and allowed as an outright use in the RR -10 zone. The current site was built in the 1920's and no longer serves TID's needs. The new site is a significant upgrade that will enable TID to reduce dependence on Tumalo Creek for natural flow, provide emergency water supplies for the District and Emergency Services responders, and provide increased efficiency in the operations and maintenance of the TID system overall." Attached to the LUCS form was a two-page letter dated June 19, 2014 from Ken Rieck, to Nick Lelack describing the reason for the LUCS request. By a letter dated August 6, 2014, Deschutes County Building Official Dave Peterson issued a stop work order to KCDG for work performed on the boat house foundation on the southern reservoir without a building permit. The previously submitted building and electrical permit applications were withdrawn by KCDG. On August 13, 2014, Mr. Lelack completed and issued the WRD LUCS form by checking the box stating: I&I "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan. Cite applicable ordinance section(s):" Mr. Lelack attached to the form a three-page "Notice of Decision" dated August 13, 2014. The decision cited Section 18.60.020(1) listing "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District," and included the following findings: 'According to information provided by Tumalo Irrigation District, TID `has decided to move its Regulation Pond storage to [the Klippel Mining Pit] a site upstream from our current in -district storage at Tumalo Reservoir.' TID states that the existing Reservoir `was designed and built in the 1920's and does not adequately serve TID's needs,' and that the new site `will be a significant upgrade to operations and maintenance.' The Planning Director finds that transferring in -district storage from the Tumalo Reservoir upstream to the Klippel Acres Mining Pit in order to improve the operations of TID's existing irrigation system is a use permitted outright in this zone." On August 22, 2014, opponents Thomas and Dorbina Bishop, Trustees for the Bishop Family Trust (hereafter "Bishops'), filed an appeal from the LUCS. The appeal was referred to this Hearings Officer for hearing. On September 16, 2014, CDD received a code violation complaint for construction of a new road on the subject property. The complaint was again investigated by Tim Grundeman who found no code violation. On September 22, 2014, CDD received a code violation complaint regarding waterskiing occurring on the southern reservoir. On September 25, 2014, TID filed with WRD a notice of intent to change the location of a portion of its water right to the reservoirs on the subject property (T-11951). On October 3, 2014, the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Senior Planner Anthony Raguine. On October 7, 2014, the Hearings Officer held a public hearing on the appeal. At that hearing, the Hearings Officer disclosed her observations and impressions from the site visit. On October 10, 2014, CDD issued a Notice of Violation to KCDG for operating a "recreation -oriented facility requiring large acreage" without land use approval. On December 15, 2014, the Hearings Officer issued a final decision on the LUCS appeal, holding in relevant part that: "1. The county incorrectly categorized TID's proposed use on the WRD LUCS form as a use allowed without review. 2. The county erred in issuing a LUCS decision finding TID's proposed use was allowed without review. 16 3. The county's LUCS decision is reversed and remanded for the CDD Director to reissue the WRD LUCS form and the LUCS decision to categorize TID's proposed use as one involving discretionary land use approval(s) that have not yet been obtained — i.e., the conditional use of surface mining for reservoirs in conjunction with operation and maintenance of irrigation systems under Section 18.60.030(W), and/or a recreation -oriented facility requiring large acreage under Section 18.60.030(G). " Both TID and the Bishops appealed the Hearings Officer's decision to the Deschutes Board of County Commissioners (hereafter "board'). 2015. On January 7, 2015, by Order No. 2015-009, the board accepted the TID's and the Bishops' appeals of the Hearings Officer's LUCS decision and elected to consolidate them into a single de novo proceeding. On January 29, 2015 the board held a public hearing on the appeals. On April 8, 2015, the board issued its decision affirming the Hearings Officer's decision. On April 24, 2015, Nick Lelack re -issued the WRD LUCS form and checked the box stating: "Land uses to be served by the proposed water uses (including proposed construction) involve discretionary land use approvals as listed in the table below. (Please see attached documentation of applicable land use approvals which have already been obtained. Record of Action/land use decision and accompanying findings are sufficient.) If approvals have been obtained but all appeal period have not ended, check "Being pursued." (Bold emphasis in original.) The table on the LUCS form listed conditional use permits as required to establish a recreation facility and for surface mining. The board's and the Hearings Officer's decisions were attached to the re -issued LUCS. On April 29, 2015, WRD issued two orders concerning TID's request for permission to transfer the place of use of part of its water right from Upper Tumalo Reservoir to the reservoirs on the subject property. WRD denied TID's application (T-11833) for a temporary transfer in place (Special Order Volume 95, Pages 1018-1025). It also denied TID's request for approval of a permanent transfer in place (Special Order Volume 95, Pages 1026- 1032). The stated reason for WRD's denials was that land use approval was required for the transfer and TID had not obtained it. In May of 2015, KCDG, TID and the Bishops filed appeals with the Land Use Board of Appeals (LUBA) from the board's LUCS decision, and from Nick Lelack's re -issuance of the WRD LUCS form, stating additional land use review was required for the reservoirs. On May 14, 2015, a code violation complaint was filed alleging unpermitted construction on the subject property including piping and concrete work. On May 15, 2015, TID's and KCDG's attorney Ken Katzaroff submitted an affidavit from Robert Varco, TID's Field Supervisor, describing the nature 17 and purpose of the construction work. According to the affidavit, the construction was to replace an existing concrete weir in order to improve TID's existing water delivery system. Mr. Varco stated TID installs approximately 20 new or replacement weirs in its system each year. On May 18, 2015, Senior Planner Anthony Raguine and Code Enforcement Technician John Griley met with Harris Kimble on the subject property to investigate the construction. Based on the investigation and Mr. Varco's affidavit, the county determined this construction work did not require building or electrical permits, and that the work was allowed outright under Section 18.60.020(1) of the Deschutes County Code as the "operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District." The code enforcement case was closed. On September 9, 2015, LUBA issued its decision on TID's/KCDG's and the Bishops' appeals from the county's LUCS decisions. Bishop v. Deschutes County, _ Or LUBA _ (LUBA No. 2015-027, 2015-028, and 2015-030, September 9, 2015). TID's/KCDG's appeals included motions to dismiss all appeals, and the Bishops' appeals included a motion to transfer its appeals to the Deschutes County Circuit Court on the basis that LUBA lacked jurisdiction to hear the appeals. In its decision, LUBA held: (1) the board correctly found both TID/KCDG and the Planning Director mischaracterized the nature of the use for which the LUCS was requested: (2) the Planning Director did not err in re -issuing the LUCS stating land use approval for the reservoirs was required. (3) LUBA lacked jurisdiction to hear the appeals because they are excluded from LUBA jurisdiction under ORS 197.015(10)(b)(H)(iii);" (4) the Bishops' LUBA appeals were transferred to the Deschutes County Circuit Court based on the Bishops' motion for transfer, and (5) TID's/KCDG's appeals were dismissed because they did not timely file a motion for transfer to the circuit court. On April 29, 2015, KCDG and TID jointly applied for conditional use approval to make lawful previous surface mining that created the two reservoirs on the property along with a variance from the RR10 Zone setbacks to allow the South Reservoir to cross a property line. The applicants also requested conditional use, site plan and landscape management approval to establish a recreation facility requiring large acreage for water skiing.8 2016. On January 21, 2016, the HO denied the applications for surface mining and the recreation facility. The HO decision was subsequently appealed to the Board of County Commissioners (Board), who declined review (Board Order 2016-010). The Bishops appealed the HO denial to LUBA (LUBA 2016-023). KCDG and TID filed a Joint Motion to Dismiss. Subsequently, the Bishops filed a Motion to Withdraw Notice of Intent to Appeal and Dismiss Appeal. Based on the Bishops' request, LUBA dismissed the appeal. s Land use file numbers 247 -15 -000226 -CU, 227 -CU, 228-1-M, 383 -MA, 384 -SP, 385-V. 18 On November 30, 2016, KCDG applied for a LUCS' for "one time fill plus 44 feet per year in mitigation water to be stored in 2 ponds by KC Development Group for landscape aesthetics, emergency fire protection, and temporary pass through irrigation water for personal irrigation use by KC Development Group ("bulge in system')." On December 14, 2016, the county issued the LUCS checking the box marked "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan." Further, the county included the following statement on the LUCS, "The Deschutes County Zoning Code does not regulate the use of water to be stored in 2 ponds for aesthetic landscaping, emergency fire protection, or pass-through irrigation for the property owner." On December 22, 2016, the Bishops attempted to file a local appeal of LUCS 247 -16 -000748 -PS. On December 30, 2016, the county informed the Bishops that the LUCS decision was a development action which is only appealable by the applicant, his or her representatives, and his or her witnesses, pursuant to DCC 22.32.050. 2017. On January 4, 2017, in response to the county not accepting the Bishops request for appeal of the LUCS, the Bishops filed a Notice of Intent to Appeal (LUBA 2017-002). On the same day, in response to the county issuing the LUCS, the Bishops filed a precautionary Notice of Intent to Appeal (LUBA 2017-003). LUBA consolidated both appeals. In response to the LUBA appeals, the county and KCDG jointly filed a Motion to Dismiss for Lack of Jurisdiction. On March 21, 2017, LUBA denied the motion to dismiss both appeals. On January 10, 2017, KCDG applied for a LUCS10 for "Limited license to provide temporary authorization while awaiting Department approval of Groundwater permit application G-18422, authorizing storage of water in two ponds for fire protection, aesthetic and pass through irrigation water." On January 12, 2017, the Bishops attempted to submit materials into the record for LUCS 247 -17 -000016 -PS. On January 18, 2017, Central Oregon Landwatch (COWL) also attempted to submit materials into the record for this LUCS. Via email dated January 31, 2017, the county informed both the Bishops and COWL that the county rejected both submissions and would not consider the materials in making a decision on the LUCS. On February 7, 2017, the county issued the LUCS checking the box marked "Land uses to be served by the proposed water uses (including proposed construction) are allowed outright or are not regulated by your comprehensive plan." Further, the county included the following statement on the LUCS, "The Deschutes County Zoning Code does not regulate the 9 Land use file number 247 -16 -000748 -PS. 10 Land use file number 247 -17 -000016 -PS. 19 use of water to be stored in 2 ponds for aesthetic landscaping, emergency fire protection, or pass-through irrigation for the property owner." On February 16, 2017, the Bishops attempted to file a local appeal of LUCS 247 -17 -000016 -PS. On February 17, 2017, the county informed the Bishops that the LUCS decision was a development action which is only appealable by the applicant, his or her representatives, and his or her witnesses, pursuant to DCC 22.32.050. On July 28, 2017, KCDG applied for a Limited Water Use License LUCS" for "One time fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for private irrigation ("bulge in the system') and for recreation purposes." On the same day, KCDG applied for a separate Permit to Use or Store Water LUCS also for "One time fill plus 44 acre-feet per year to be stored in 2 ponds for aesthetics, emergency fire protection, temporary pass-through for private irrigation ("bulge in the system') and for recreation purposes." On August 17, 2017, the county issued both LUCS forms by checking the box "Land uses to be served by the proposed water uses (including proposed construction) involve discretionary land -use approvals as listed in the table below." In the LUCS table, the county indicated the following land use approvals were being pursued by KCDG: comprehensive plan amendment, tentative plat, conditional use, site plan, lot line adjustments, surface mining impact area review and landscape management review. J. PROCEDURAL HISTORY AND REVIEW PERIOD: The subject applications were submitted on July 28, 2017. The applications were deemed complete on August 25, 2017. On October 12, 2017, the applicant withdrew all eight of the property line adjustment applications that the county consolidated with the ROF and PUD proposals. The applicant has waived a total of 35 days on the 150 -day time period within which the County must issue a final land use decision on the conditional use permit application. Originally, the 150th -day upon which the county must issue a final land use decision on the conditional use permit was January 22, 2018. The new 150'" -day for a final land use decision is February 26, 2018. K. ABILITY TO PROCESS APPLICATIONS: A number of comments were received arguing that the county cannot process the subject applications because the current applications do not resolve the previous unpermitted actions to create the reservoirs. Specifically, in her letter dated August 17, 2017, Bishop legal counsel Jennifer Bragar points out that under DCC 22.20.015(D)(1), permits or other approval may be authorized only if it results in the property coming into full compliance with all applicable provisions of federal, state, and local law. Ms. Bragar goes on to state that the subject applications do not contain approval of the surface mining activity in conjunction with an irrigation district. 11 Land use file number 247 -17 -000623 -PS 20 The purpose of the current applications, along with concurrent applications 247- 17 -000627 -CU and 247 -17 -000629 -PA 12, is to legitimize all previous reservoir - related work and seek approval for the contested water ski lake. The Hearings Officer determines that it is appropriate to consider the applications pursuant to the Procedures Ordinance in DCC Title 22. 1 note that the concurrent conditional use permit application for a conditional use permit approval for surface mining in file no. 247 -17 -000627 -CU has been denied by this Hearings Officer. L. EFFECT OF RELATED FINAL DECISION: This Hearings Officer issued a Final Decision on the related land use applications submitted by the Applicant requesting after -the -fact approval of surface mining in the RR -10 Zone and approval of a PAPA to authorize the surface mining use that created the reservoirs. File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA. Because the Hearings Officer denied the conditional use permit application for surface mining, the two reservoirs are not authorized under local and state law. Accordingly, the Hearings Officer is constrained to deny the ROF applications before me in this Final Decision because the reservoirs were not legally created. III. CONCLUSIONARY FINDINGS: OAR 660-004-0040, APPLICATION OF GOAL 14 TO RURAL RESIDENTIAL AREAS (1) The purpose of this rule is to specify how Statewide Planning Goal 14, Urbanization, applies to rural lands in acknowledged exception areas planned for residential uses. (2) (a) This rule applies to lands that are not within an urban growth boundary, that are planned and zoned primarily for residential uses, and for which an exception to Statewide Planning Goal 3 (Agricultural Lands), Goal 4 (Forest Lands), or both has been taken. Such lands are referred to in this as rural residential areas. (b) Sections (1) to (8) of this rule do not apply to the creation of a lot or parcel, or to the development or use of one single-family home on such lot or parcel, where the application for partition or subdivision was filed with the local government and deemed to be complete in accordance with ORS 215.427(3) before the effective date of Section (1) to (8) of this rule. FINDING: Most of the property was subject to a zone change from Surface Mining (SM) to RR10 via land use approval PA -07-2 and ZC-07-2. The remainder of the property was zoned RR10 in 1979 as part of the county's adoption of its zoning ordinance codified as Public Law 15 (PL -15). At this same time, these RR10-zoned lands were acknowledged as exception areas in the county's comprehensive plan. For these reasons, the subject property is in a rural residential exception area as defined in 2(a) above. The applicant is proposing to create new lots for dwellings. Therefore, the Hearings Officer finds the restrictions in this rule apply. 12 KCDG and TID jointly applied for conditional use approval and a comprehensive plan amendment to authorize surface mining of a non -Goal 5 mineral and aggregate site. 21 (c) This rule does not apply to types of land listed in (A) through (H) of this subsection: (A) land inside an acknowledged urban growth boundary; (B) land inside an acknowledged unincorporated community boundary established pursuant to OAR Chapter 660, Division 022; (C) land in an acknowledged urban reserve area established pursuant to OAR Chapter 660, Division 021; (D) land in acknowledged destination resort established pursuant to applicable land use statutes and goals; (E) resource land, as defined in OAR 660-004-0005(2); (F) nonresource land, as defined in OAR 660-004-0005(3); (G) marginal land, as defined in ORS 197.247, 1991 Edition; (H) land planned and zoned primarily for rural industrial, commercial or public use. FINDING: The subject property is not located within any of the above listed areas. Therefore, the Hearings Officer finds the development is subject to this rule. (7) (a) The creation of any new lot or parcel smaller than two acres in a rural residential area shall be considered an urban use. Such a lot or parcel may be created only if an exception to Goal 14 is taken. This subsection shall not be construed to imply that creation of new lots or parcels two acres or larger always complies with Goal 14. The question of whether the creation of such lots or parcels complies with Goal 14 depends upon compliance with all provisions of this rule. (b) Each local government must specify a minimum area for any new lot or parcel that is to be created in a rural residential area. For the purposes of this rule, that minimum area shall be referred to as the minimum lot size. (c) If, on the effective date of this rule, a local government's land use regulations specify a minimum lot size of two acres or more, the area of any new lot or parcel shall equal or exceed that minimum lot size which is already in effect. (d) If, on the effective date of this rule, a local government's land use regulations specify a minimum lot size smaller than two acres, the area of any new lot or parcel created shall equal or exceed two acres. (e) A local government may authorize a planned unit development (PUD), specify the size of lots or parcels by averaging density across a parent parcel, or allow clustering of new dwellings in a rural residential area only if all conditions set forth in paragraphs (7)(e)(A) through (7)(e)(H) are met: A. The number of new dwelling units to be clustered or developed as a PUD does not exceed 10. FINDING: All proposed new lots will be two acres in size. The Hearings Officer finds the ten proposed residential units comply with this rule. PINJI B. The number of new lots or parcels to be created does not exceed 10. FINDING: The applicant proposes ten new residential lots with the remainder of the property preserved as an open space tract. The Hearings Officer finds this rule will be met. C. None of the new lots or parcels will be smaller than two acres. FINDING: All the residential lots will be two acres in size. The Hearings Officer finds this rule will be met. D. The development is not to be served by a new community sewer system. E. The development is not to be served by any new extension of a sewer system from within an urban growth boundary or from within an unincorporated community. FINDING: The ten residential lots will have individual septic systems and not be served by a new community sewer system or require extension of a sewer system. The Hearings Officer finds the requirements of these rules will be met. F. The overall density of the development will not exceed one dwelling for each unit of acreage specified in the local government's land use regulations on the effective date of this rule as the minimum lot size for the area. FINDING: The RR10 zone establishes a general density 13 of one lot per ten acres. As noted previously, OAR 660-004-040(7)(e)(A) & (B) will allow the creation of ten new residential units & lots. The Hearings Officer finds the overall density requirement under this rule pertains to the residential density. For this reason, the proposed creation of ten residential lots on the 150 -acre property complies with this rule. G. Any group or cluster of two or more dwelling units will not force a significant change in accepted farm or forest practices on nearby lands devoted to farm or forest use and will not significantly increase the cost of accepted farm or forest practices there. FINDING: There are no known forest practices on adjacent properties or in the area generally. The closest lands zoned for Forest Use (F-1 and F-2) are located approximately 0.5 miles to the northwest, 1 mile to the west and 1.2 miles to the southwest. The closest 13 Under DCC 18.60.050(C), cluster and planned unit developments within a mile of an acknowledged Urban Growth Boundary (UGB) are allowed an equivalent density of one lot per five acres. The subject property is within one mile of the UGB associated with the City of Bend. However, the applicant is not utilizing this provision. 23 known forest practices are occurring on both private and public lands over 2 miles to the west. Given this distance, the Hearings Officer finds the proposed subdivision will not force a significant change in accepted forest practices on nearby lands, and will not significantly increase the cost of accepted forest practices there. With respect to impacts to farming practices, the applicant provides the following analysis, The only nearby farm use in the area is the west half of Tax Lot 800, Map 17-11-12 on a lot zoned EFU and SM. This property grows hay. According to the county's list of common farm practices in Deschutes County, Exhibit T, the following are farm practices related to growing hay (listed under "permanent pasture') that might be impacted by residential development: reseeding, ground spraying of herbicides for weed control, harvesting/baling for hay, spreading manure for fertilizer and irrigation. The aspects of these practices that may conflict with residential use are dust, drifting of herbicides that may be toxic, vehicle noise from the baler (up to to % mile), manure odor (for up to several days) and possible runoff water from the surface application of irrigation water and overspraying onto roads and across fence lines. The clustered lots in the planned development will be over 2000 feet south of this property. The clustered lots are separated from Tax Lot 800 by open space and existing residences. A number of single-family homes are within 2000 feet of the hay field, including numerous homes on small rural lots in the Saddleback subdivision. The uses have been in place for many years without forcing a significant change in accepted farm and forest practices on this property. The new residential lots will downwind of Tax Lot 800 as prevailing winds are from the southwest making it unlikely that dust from reseeding will create a conflict. Herbicide drift from ground application will not drift over 2000 feet to the subject property. Tax Lot 800 is so far from the new residences that any noise from a baler will be so attenuated by distance as not to generate actionable noise complaints. The distance separating the hay field and the new homes and prevailing winds, also, will make it highly unlikely any new resident will smell manure spread as fertilizer or that any irrigation water runoff will ever reach the new home lots. As a result, it is not anticipated that the planned development will have any impact on such adjacent use. The Hearings Officer finds that substantial evidence in the record supports a determination that the proposed subdivision will not force a significant change in accepted farming practices on nearby lands, and will not significantly increase the cost of accepted farming practices there. This rule will be met. H. For any open space or common area provided as a part of the cluster or planned unit development under this subsection, the owner shall submit proof of nonrevocable deed restrictions recorded in the deed records. The deed restrictions shall preclude all future rights to construct a dwelling on the lot, parcel, or tract 24 designated as open space or common area for as long as the lot, parcel, or tract remains outside an urban growth boundary. FINDING: Per the applicant's September 30, 2017 email, the applicant agrees to the above -detailed restriction on the proposed open space tract. The Hearings Officer finds that, with the imposition of a condition of approval requiring compliance with this restriction, this rule will be met. (f) Except as provided in subsection (e) of this section, a local government shall not allow more than one permanent single- family dwelling to be placed on a lot or parcel in a rural residential area. Where a medical hardship creates a need for a second household to reside temporarily on a lot or parcel where one dwelling already exists, a local government may authorize the temporary placement of a manufactured dwelling or recreational vehicle. FINDING: The applicant proposes one single-family dwelling per residential lot. The Hearings Officer finds this rule will be met. OREGON REVISED STATUTES, CHAPTER 92, SUBDIVISIONS AND PARTITIONS 92.010 Definitions for ORS 92.010 to 92.192. As used in ORS 92.010 to 92.192, unless the context requires otherwise: (11) "Property line" means the division line between two units of land. (12) "Property line adjustment" means a relocation or elimination of all or a portion of the common property line between abutting properties that does not create an additional lot or parcel. 14 92.192 Property line adjustment; zoning ordinances; size of unit of land. (2) Except as provided in this section, a lawfully established unit of land that is reduced in size by a property line adjustment approved by a city or county must comply with applicable zoning ordinances after the adjustment. (3) Subject to subsection (4)15 of this section, for land located entirely outside the corporate limits of a city, a county may approve a property line adjustment in which: (a) One or both of the abutting lawfully established units of land are smaller than the minimum lot or parcel size for the applicable zone before the property line adjustment and, after the adjustment, one is as large as or larger than the minimum lot or parcel size for the applicable zone; or (b) Both abutting lawfully established units of land are smaller than the minimum lot or parcel size for the applicable zone before and after the property line adjustment. 14 This definition of property line adjustment also appears in DCC 17.08.030, of Title 17, Subdivisions. 15 Subsection (4) of ORS 92.192 applies to farm and forest zoned lands and is, therefore, excluded from this staff report. 25 FINDING: The eight property line adjustments that the county consolidated with the ROF and PUD proposals, that have since been withdrawn, were submitted with the intent of arriving at the property configurations depicted on the applicant's Exhibits A and B. These property line adjustments are necessary as part of any approval of the ski lake and subdivision because these developments rely on the final configuration of legal lots of record depicted on drawing "PLA 8 of 8" in order to proceed. The question of whether the ROF and PUD applications can be processed, despite the fact that the requisite property line adjustments have yet to be completed, is answered in Bollam v. Clackamas County, 52 Or LUBA 728 (2006). In this case, the Clackamas County HO approved a subdivision as a PUD, but denied the associated property line adjustment upon which the subdivision was reliant. While denying the property line adjustment, the HO found that it was feasible for the property line adjustment to be approved in a separate decision under different approval criteria. Further, the HO conditioned approval of the subdivision on completion of an approved property line adjustment. On appeal, LUBA determined that the HO did not err in finding it feasible for the necessary property line adjustment to be approved and conditioning approval of the subdivision. Similarly here, this Hearings Officer finds it is feasible for the eight property line adjustments to be approved under separate decision. I find it is appropriate for the county to review the proposed ROF and PUD, and if either or both are approved, condition the approval to require completion of the eight necessary property line adjustments, consistent with Bowerman v. Lane County (LUBA No. 2016-008). TITLE 18, COUNTY ZONING A. Chapter 18.60, Rural Residential Zone Section 18.60.030. Conditional Uses Permitted. The following uses may be allowed subject to DCC 18.128: E. Planned development. G. Recreation oriented facility requiring large acreage such as off road vehicle track or race track, but not including a rodeo grounds. FINDING: The applicant proposes to establish a 10 -lot PUD and a ROF requiring large acreage. Applicable conditional use permit criteria are addressed below. 2. Section 18.60.040. Yard and Setback Reauirements. In an RR 10 Zone, the following yard and setbacks shall be maintained. A. The front setback shall be a minimum of 20 feet from a property line fronting on a local street right of way, 30 feet from a property line fronting on a collector right of way and 50 feet from an arterial right of way. 26 B. There shall be a minimum side yard of 10 feet for all uses, except on the street side of a corner lot the side yard shall be 20 feet. C. The minimum rear yard shall be 20 feet. D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180. E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: Based on review of the site plan and tentative plan drawings depicted on Exhibit C and G of the applicant's burden of proof, respectively, the Hearings Officer finds it feasible to site a single-family dwelling to meet the required yard setbacks on each residential lot given their size and dimensions. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. 16 With imposition of a condition of approval to ensure compliance, I find these criteria may be met. As shown on the applicant's submitted site plan, proposed boat garages and associated piers will observe side and rear yard setbacks of at least 20 feet, meeting this criterion." With the denial of the conditional use permit for the surface mining set forth in the Final Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA, however, the ROF cannot be approved because the reservoirs were not legally created and cannot now be legitimized by the County. 3. Section 18.60.050. Stream Setback. To permit better light, air, vision, stream or pollution control, protect fish and wildlife areas and to preserve the natural scenic amenities and vistas along streams and lakes, the following setback shall apply: A. All sewage disposal installations, such as septic tanks or septic drainfields, shall be set back from the ordinary high water mark along all streams or lakes a minimum of 100 feet, measured at right angles to the ordinary high water mark. In those cases where practical difficulties preclude the location of the facilities at a distance of 100 feet and the County Sanitarian finds that a closer location will not endanger health, the Planning Director or Hearings Body may permit the location of these facilities closer to the stream or lake, but in no case closer than 25 feet. B. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water mark along all streams 16 The applicant requests an exemption from the solar setback standards, which is addressed in the findings below. 17 The Hearings Officer notes that I have concluded in a separate Final Decision that the reservoirs were not legally created. As a result, the ROF-related application in this Decision is denied, as discussed below. Nonetheless, this Final Decision includes analysis of supporting structures for the contemplated ROF use in the event the related Final Decision is reversed on appeal. MA or lakes a minimum of 100 feet measured at right angles to the ordinary high watermark. FINDING: Per the tentative plan on Exhibit G of the applicant's burden of proof, the 100 - foot setback from the ordinary high water mark associated with Tumalo Creek affects subdivision lots 8-10. With imposition of a condition of approval to ensure compliance, I find these criteria may be met. 4. Section 18.60.060. Dimensional Standards. In an RR 10 Zone, the following dimensional standards shall apply. A. Lot Coverage. The main building and accessory buildings located on any building site or lot shall not cover in excess of 30 percent of the total lot area. FINDING: The application for the permit for the ROF is denied in this Final Decision such that accessory buildings related to the ROF are not authorized. B. Building Height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The application for the permit for the ROF is denied in this Final Decision such that accessory buildings related to the ROF are not authorized. C. Minimum lot size shall be 10 acres, except planned and cluster developments shall be allowed an equivalent density of one unit per 7.5 acres. Planned and cluster developments within one mile of an acknowledged urban growth boundary shall be allowed a five acre minimum lot size or equivalent density. For parcels separated by new arterial rights of way, an exemption shall be granted pursuant to DCC 18.120.020. FINDING: The properties associated with the subdivision, as depicted on Exhibit A of the applicant's burden of proof, encompass a total of 104.68 acres. The applicant proposes a 10 -lot subdivision for an equivalent residential density of 1 lot per 10.47 acres, meeting this criterion. Although the subject property is within one mile of an acknowledged urban growth boundary (UGB), the applicant does not propose to take advantage of the allowed density bonus. The Hearings Officer finds this criterion will be met. B. Chapter 18.56, Surface Mining Impact Area Combining Zone Section 18.56.030. Application of Provisions. The standards set forth in DCC 18.56 shall apply in addition to those specified in DCC Title 18 for the underlying zone. If a conflict in regulations or standards occurs, the provisions of DCC 18.56 shall govern. FINDING: The standards under DCC 18.56 are addressed in the following findings. 2. Section 18.56.040. Uses permitted outright. Uses permitted outright shall be those identified in the underlying zone(s) with which the SMIA Zone is combined. FINDING: The proposed dwellings associated with the subdivision are allowed outright in the RR10 Zone and are also allowed outright in the SMIA Combining Zone. 3. Section 18.56.070. Setbacks. A. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SMIA Zone shall be located within 250 feet of any surface mining zone, except as provided for in Section 18.56.140. B. No noise -sensitive or dust sensitive use or structure established or constructed after the designation of the SMIA zone shall be located within one-quarter mile of any existing or proposed surface mining processing or storage site, unless the applicant demonstrates that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards, and conditions set forth in DCC 18.52.090, 18.52.110, and 18.52.140, respectively. FINDING: The proposed residential lots will be at least 0.35 miles, or approximately 1,900 feet, from the closest boundary associated with Surface Mining Site No. 293 identified as tax lots 500, 600, 700, and 800 on Assessor map 17-11-12. For this reason, the Hearings Officer finds the criteria under DCC 18.52.090, 110 and 140, as well as the criteria under 18.56.140, do not apply. Across Tumalo Creek to the east is the Shevlin Sand and Gravel operation known as the 'Cake Pit', currently operated by ERMK, LLC, and authorized for surface mining activities via Department of Geology and Mineral Industries (DOGAMI) permit 09-0018. This property is zoned SM and is regulated by the provisions of Title 19, Bend Urban Growth Boundary Zoning Ordinance. However, it is not recognized in Deschutes County's Comprehensive Plan as a Goal 5 surface mine. Unlike Title 18, Title 19 does not include an equivalent SMIA Combining Zone. For this reason, the Hearings Officer finds that, although the Cake Pit is within 250 feet of the subject property, none of the provisions of the SMIA chapter apply to the Cake Pit. In response to the notice of application, an email dated August 14, 2017 was received from Will Van Vactor, legal counsel representing ERMK, LLC. The email includes a letter which expresses concern regarding conflicts between the proposed residential development and operation of the Cake Pit. Consequently, ERMK, LLC requests the county require a waiver of remonstrance prohibiting the applicant and future owners from complaining about or opposing ERMK's mining operation, including any future expansion of the mining operation. As noted above, Title 19 does not include a SMIA Combining Zone and the Title 18 SMIA Combining Zone does not apply to any surface mines which are regulated by Title 19. For this reason, the Hearings Officer finds there are no provisions in the SMIA Combining Zone which would afford the Cake Pit any protections via the waiver of remonstrance. Nonetheless, required compliance with the general compatibility requirements under DCC 18.128.015 provides an opportunity to address this issue. These criteria are addressed below. 29 C. Additional setbacks in the SM/A zone may be required as part of the site plan review under DCC 18.56.100. FINDING: The Hearings Officer finds no additional setbacks should be required. D. An exception to the 250 -foot setback in DCC I& 56.070(A) shall be allowed pursuant to a written agreement for a lesser setback made between the owner of the noise -sensitive or dust -sensitive use or structure located within 250 feet of the proposed surface mining activity and the owner or operator of the proposed surface mine. Such agreement shall be notarized and recorded in the Deschutes County Book of Records and shall run with the land. Such agreement shall be submitted and considered at the time of site plan review or site plan modification. FINDING: As noted above, the proposed residential lots will be located well beyond 250 feet. For this reason, the Hearings Officer finds this criterion does not apply. 4. Section 18.56.080. Use Limitations. No dwellings or additions to dwellings or other noise -sensitive or dust - sensitive uses or structures shall be erected in any SM/A Zone without first obtaining site plan approval under the standards and criteria set forth in DCC 18.56.090 through 18.56.120. FINDING: The applicant proposes a new dwelling on each of the 10 subdivision lots. Single- family dwellings are considered dust- and noise -sensitive uses per DCC 18.04.03018. Criteria under DCC 18.56.090 through 18.56.120 are addressed below. The Hearings Officer denies the application for a permit for the ROF, as discussed below. Nonetheless, the Hearings Officer finds the proposed ROF is not a dust -or noise -sensitive use subject to the provisions of this chapter. 5. Section 18.56.090. Specific Use Standards. The following standards shall apply in the SM/A Zone: New dwellings, new noise -sensitive and dust -sensitive uses or structures, and additions to dwellings or noise and dust -sensitive uses or structures in existence on the effective date of Ordinance No. 90.014 which exceed 10 percent of the size of the existing dwelling or use, shall be subject to the criteria established in DCC 18.56.100. FINDING: DCC 18.56.100 is addressed below for the proposed single-family dwellings. 18 "Dust -sensitive use" means real property normally used as a residence, school, church, hospital or similar use. Property used in industrial or agricultural activities is not "dust -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses such as garages and workshops do not constitute dust -sensitive uses. "Noise -sensitive use" means real property normally used for sleeping or normally used as schools, churches, hospitals or public libraries. Property used in industrial or agricultural activities is not "noise -sensitive" unless it meets the above criteria in more than an incidental manner. Accessory uses such as garages or workshops do not constitute noise -sensitive uses. 30 6. Section 18 56.100. Site Plan Review and Approval Criteria. A. Elements of Site Plan. A site plan shall be submitted in a form prescribed by the Planning Director or Hearings Body detailing the location of the proposed noise -sensitive use, the location of the nearby surface mine zone and operation, if any, and other information necessary to evaluate the approval criteria contained in DCC 18.56.100. FINDING: Staff finds, and I agree that the application materials include all of the necessary information to evaluate the approval criteria under DCC 18.56.100. B. Site plan review and approval, pursuant to the County Uniform Land Use Action Procedures Ordinance, shall be required for all uses in the SMIA Zone prior to the commencement of any construction or use. FINDING: The applicant has applied for SMIA site plan review for the residential uses proposed as part of the subdivision. C. The Planning Director or Hearings Body may grant or deny site plan approval and may require such modifications to the site plan as are determined to be necessary to meet the setbacks, standards and conditions described above. FINDING: As discussed above, the Hearings Officer finds the proposal will meet all required setbacks, standards and conditions. For this reason, no modifications to the subdivision are necessary. D. The site plan shall be approved if the Planning Director or Hearings Body rinds that the site plan is consistent with the site- specific ESEE analysis in the surface mining element of the Comprehensive Plan and that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively. FINDING: As detailed below, the proposed subdivision meets the abbreviated review standards under DCC 18.56.110(A) and, therefore, the standards under this criterion are presumed to be met. E. Public notice shall be as set forth in DCC Title 22, the Uniform Development Procedures Ordinance, except that in all cases notice of the receipt of an SMIA application shall be sent to the mine owners and/or operators whose SM -Zoned site triggered the SMIA review. FINDING: Notice of this SMIA application was completed in accordance with DCC Title 22 and includes notice to the mining operator of Surface Mining Site No. 293. The Hearings Officer finds this criterion is met. 7. Section 18.56.110. Abbreviated SMIA Site Plan Review. 31 A. A new or enlarged noise- or dust -sensitive use to which DCC 18.56.110 applies that is at least one-quarter mile from an SM Zone and that has at least two dwellings or other noise- or dust - sensitive uses between it and the SM zone is presumed to meet the approval criteria set forth in DCC 18.56.100(D), and shall be processed under DCC 18.56.110. B. Abbreviated SM/A site plan review shall require the submission of an application in a form prescribed by the Planning Director or Hearings Body and such documentation as is necessary to demonstrate conformance with DCC 18.56. 1 10(A). C. Unless the underlying zoning at the SM/A site would require additional review of the proposed use for some other land use permit, abbreviated site plan review shall be conducted (1) administratively without prior public notice; (2) with public notice of the Findings and Decision mailed consistent with DCC 18.56.100(E), to all persons entitled to receive notice; and (3) with an appeal period and procedures as set forth in DCC Title 22, the Uniform Development Procedures Ordinance. Appellants may submit evidence to overcome the presumption set forth in DCC 18.56.110(A). FINDING: As discussed previously, the closest residential lot (Lot 4) will be located at least 0.35 miles from Surface Mine Site No. 293. Additionally, there are at least two existing dwellings located between Lot 4 and Mine Site No. 293. For these reasons, the Hearings Officer finds the proposed subdivision meets the criteria under DCC 18.56.100(D). The subject abbreviated SMIA review is part of a larger land use permit. Therefore, the provisions under subsection (c) regarding administrative review do not apply. Notice of any decision related to this project will be completed pursuant to Title 22 and DCC 18.56.100(E). 8. Section 18.56.120. Waiver of Remonstrance. The applicant for site plan approval in the SM/A Zone shall sign and record in the Deschutes County Book of Records a statement declaring that the applicant and his successors will not now or in the future complain about the allowed surface mining activities on the adjacent surface mining site. FINDING: The Hearings Officer finds that a Waiver of Remonstrance for Surface Mining Site No. 293 should be required as a condition of approval to ensure compliance. C. Chapter 18.84, Landscape Management Combining Zone Section 18.84.020. Application of Provisions. The provisions of this chapter shall apply to all areas within one- fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of this chapter shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified a landscape management corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured 32 horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitation in this section shall not unduly restrict accepted agricultural practices. FINDING: Both Johnson Road and Tumalo Creek are identified on the County Zoning Map as the landscape management features. A portion of the subject property falls within these Landscape Management Combining Zones. Therefore, the Hearings Officer finds the provisions of this chapter apply. 2. Section 18.84.040. Uses Permitted Conditionally. Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDING: The proposed ROF and PUD are allowed conditionally in the underlying RR - 10 Zone and, therefore, are allowed conditionally in the LM Combining Zone. As discussed herein, the Hearings Officer denies the proposed ROF because the surface mining conducted to create the reservoirs cannot be legitimized or authorized. 3. Section 18.84.050. Use Limitations. A. Any new structure or substantial alteration of a structure requiring a building permit, or an agricultural structure, within an LM Zone shall obtain site plan approval in accordance with DCC 18.84 prior to construction. As used in DCC 18.84 substantial alteration consists of an alteration which exceeds 25 percent in the size or 25 percent of the assessed value of the structure. FINDING: The structures requiring a building permit associated with the PUD will be the dwellings. Only those dwellings that will be located on PUD Lots 8-10 will be within an LM Combining Zone. Therefore, the Hearings Officer finds that compliance with DCC 18.84 is required for any future dwellings located on PUD Lots 8-10. The applicant proposed boat garages as part of its request for approval of the ROF, which is denied herein. Nonetheless, the Hearings Officer notes the boat garages would not have been located within an LM Zone and thus are not subject to the LM Chapter. B. Structures which are not visible from the designated roadway, river or stream and which are assured of remaining not visible because of vegetation, topography or existing development are exempt from the provisions of DCC 18.84.080 (Design Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review in the LM Zone shall conform with the provisions of DCC 18.84, or may submit evidence that the proposed structure will not be visible from the designated road, river or stream. Structures not visible from the 33 designated road, river or stream must meet setback standards of the underlying zone. FINDING: Substantial evidence in the record shows that no dwellings associated with the PUD will be located within the Johnson Road LM Zone and only proposed Lots 8-10 will be located within the Tumalo Creek LM Zone. The applicant's burden of proof states that LM review will be secured at a future date. With imposition of a condition of approval to require LM review for Lots 8-10, 1 find these criteria may be met. D. Chapter 18.88, Wildlife Area Combining Zone Section 18.88.020. Application of Provisions. The provisions of DCC 18.88 shall apply to all areas identified in the Comprehensive Plan as a winter deer range, significant elk habitat, antelope range or deer migration corridor. Unincorporated communities are exempt from the provisions of DCC 18.88. FINDING: The subject property is within the Tumalo deer winter range. Therefore, the Hearings Officer finds the provisions of this chapter apply. 2. Section 18.88.040. Uses Permitted Conditionally. A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the conditional uses permitted shall be those permitted conditionally by the underlying zone subject to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this title. FINDING: The applicant proposes an ROF and a PUD which are conditionally permitted in the underlying RR10 Zone. The Hearings Officer finds these uses are conditionally permitted in the WA Zone. As set forth herein, the Hearings Officer denies the proposed ROF. 3. Section 18.88.050. Dimensional Standards. In a WA Zone, the following dimensional standards shall apply: D. Residential land divisions, including partitions, in deer winter range where the underlying zone is RR -10 or MUA-10, shall not be permitted except as a planned development or cluster development conforming to the following standards: 1. The minimum area for a planned or cluster development shall be at least 40 acres. 2. The planned or cluster development shall retain a minimum of 80 percent open space and conform with the provisions of DCC 18.128.200 or 210. 3. Notwithstanding the provisions of DCC 18.128.200 or 210, or DCC 18.60.060(C), the total number of residences in a cluster development may not exceed the density permitted in the underlying zone. 34 FINDING: The subject property dedicated to the PUD is approximately 104 acres in size. Based on the tentative plan, 84.68 acres, or 81.4 percent, of the property dedicated to the PUD will be retained in open space. The underlying RR10 Zone will allow up to 10 residences on the 104 -acre property. The applicant proposes 10 residential lots as part of the PUD. For these reasons, the Hearings Officer finds these criteria will be met. 4. Section 18.88.060. Siting Standards. A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined. FINDING: The applicable setbacks of the RR10 Zone are addressed above. B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: 1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, 2. The siting within 300 feet of such roads or easements for vehicular access would force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, 3. The dwelling is set back no more than 50 feet from the edge of a driveway that existed as of August 5, 1992. C. For purposes of DCC 18.88.060(B): 1. A private road, easement for vehicular access or driveway will conclusively be regarded as having existed prior to August 5, 1992 if the applicant submits any of the following: a. A copy of an easement recorded with the County Clerk prior to August 5, 1992 establishing a right of ingress and egress for vehicular use; b. An aerial photograph with proof that it was taken prior to August 5, 1992 on which the road, easement or driveway allowing vehicular access is visible; C. A map published prior to August 5, 1992 or assessor's map from prior to August 5, 1992 showing the road (but not showing a mere trail or footpath). 35 2. An applicant may submit any other evidence thought to establish the existence of a private road, easement for vehicular access or driveway as of August 5, 1992 which evidence need not be regarded as conclusive. FINDING: The application materials include a Wildlife Habitat Management Plan (WHMP) prepared by Dr. Wendy Wente of Mason, Bruce & Girard, Inc. Appendix A of the WHMP includes figures that detail roads relevant to this criterion: 1. A road traverses the property from north to south located between the western edge of the proposed ROF and the western property line. The Hearings Officer finds the location of this road from PUD Lot 1 to PUD Lot 3 appears to match the location of the "Proposed Private 60' Road and Utility Easement" depicted on the tentative plan. 2. Two roads traverse the property from north to south located along the eastern edge of the ROF. The Hearings Officer finds that the westernmost of these two "roads" is the cleared linear area associated with utility poles. I find this line of utility poles is not a road pursuant to this criterion because there is no evidence this pathway meets one of the criteria under subsection (C) above. The easternmost of these two roads matches the location of the "Existing 60' Road and Utility Easement" depicted on the tentative plan. 3. A road traverses the property from northeast to south located along the eastern property line approximately parallel to the eastern property line and Tumalo Creek. Evidence in the record supports a finding that each of the roads identified above exists. Per the tentative plan, all proposed PUD lots will be aligned along one of the roads identified above with each lot able to site a dwelling within 300 feet of one of these roads. For these reasons, the Hearings Officer finds this criterion will be met. A condition of approval shall be imposed to ensure compliance. In addition to meeting the 300 -foot siting criterion, Dr. Wente provides the following analysis of potential dwelling locations in the WHMP: "The proposed structures will be located within 300 feet of existing private roads that were present in August of 1992 (see Pre -1976 and Pre -1990 Road Figures, Appendix A). The proposed locations were selected by the Project Team while considering input from MB&G to maintain a concentration of home sites around the South Pond and prevent additional disturbance to wildlife habitat that would occur if they were placed in a different area on the property within the WA Combining Zone. The currently planned location preserves the larger contiguous area of mule deer winter range as open space to the north and west of the development, including the travel corridor that transects the northern portion of the PSA. This proposed lot arrangement protects wildlife habitat values and migration corridors to a higher degree than alternative plans that would more diffusely develop the property within the WA Combining Zone, and therefore, it maintains compliance with DCC 18.88.060. " 36 The Hearings Officer finds that substantial evidence in the record supports Dr. Wente's analysis in this regard. These criteria are met. 4. Section 18.88.070. Fencing Standards. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish and Wildlife: 1. The distance between the ground and the bottom strand or board of the fence shall be at least 15 inches. 2. The height of the fence shall not exceed 48 inches above ground level. 3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences. are discouraged. B. Exemptions: 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. 2. Corrals used for working livestock. FINDING: At this time, no new fencing is proposed. Per Section 4.2.6, Fencing, of the proposed Covenant, Conditions and Restrictions (CC&Rs): There shall be no fencing allowed between the Home and a pond. Fenced in enclosures not exceeding 5000 square feet shall be permitted along the side of the Home with the prior approval of the [Architectural Review Committee, ARC]. All other fencing shall require the prior approval of the ARC. The Hearings Officer finds that this provision in the CC&Rs to allow 5,000 square feet of fencing along the side of a dwelling complies with the exemption under subsection (B)(1) above. This provision also allows other fencing with no apparent restriction specifically tied to this approval criterion. For this reason, I find that a condition of approval requiring all fencing constructed as part of the PUD to comply with DCC 18.88.070 should be imposed. Additionally, the Hearings Officer finds that a condition of approval should be imposed requiring language be added to Section 4.2.6 of the CC&Rs to ensure compliance with DCC 18.88.070 for "all other fencing" that may be constructed as part of the PUD. E. Chapter 18.116, Supplementary Provisions FINDING: Although the Board found only the South Reservoir (ski lake) is a ROF, the applicant requests approval of the ROF to include both the South Reservoir and the North Reservoir. For the reasons discussed herein, the Hearings Officer denies the ROF because the surface mining conducted to create the reservoirs cannot be legitimized or 37 authorized. To create a record for appeal, however, for the purposes of Chapter 116, the Hearings Officer reviews the criteria against both reservoirs. Section 18.116.020. Clear Vision Areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. FINDING: In Ski Lake I, the HO found this criterion is not applicable because the subject property does not contain an area with two intersecting streets or an intersecting street and a railroad. Similarly, this Hearings Officer finds the ROF includes driveways from the parking areas that connect to PUD streets, rather than two intersecting streets. For this reason, I find this criterion does not apply. 2. Section 18.116.030. Off-street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18. Chapter 18.116. FINDING: Parking requirements related to the ROF are addressed below. Because the PUD does not require Site Plan approval, the Hearings Officer finds the parking standards in DCC 116 do not apply. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall provide off-street loading space on the basis of minimum requirements as follows: 1. Commercial, industrial and public utility uses which have a gross floor area of 5,000 square feet or more shall provide truck loading or unloading berths subject to the following table: FINDING: The applicant does not propose a commercial, industrial or public utility use. The Hearings Officer finds no loading berths are required. C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building existing on the effective date of DCC Title 18 is changed. D. Number of Spaces Required. Off-street parking shall be provided as follows: 9. Other uses not specifically listed above shall be provided with adequate parking as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. FINDING: As noted above, the proposed ROF is not considered a building. However, the ROF is proposed to include three boat garages, or buildings. As discussed herein, the Hearings Officer denies the proposed ROF because the surface mining conducted to create the reservoirs cannot be legitimized or authorized. If this decision is reversed on appeal, a condition of approval should be imposed stating that required parking must be provided in conjunction with the construction of the boat garages. The applicant proposes nine parking spaces for the South Reservoir (ski lake). The burden of proof states the expectation that most users of the ski lake will walk rather than drive. Given the proximity of the PUD dwellings and future dwellings on other legal lots of record around the ski lake edge, the record supports the applicant's assertion that some of the users will likely walk. The EMA grants access to the ski lake to all members (including families and invitees), agents and employees of the Parties to the EMA19. The applicant proposes three parking spaces associated with the passive recreational use of the North Reservoir. A ROF, or similar use, is not listed in the tables provided in subsection (D). If the ROF is approved on appeal, a condition of approval requiring the applicant to limit parking to nine spaces for the South Reservoir and three spaces for the North Reservoir should be imposed. E. General Provisions. Off -Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street parking shall be the sum of requirements of the several uses computed separately. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or 19 Reference Section 1.3.1 of the EMA. M parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: The parking standards of this chapter only apply to the ROF. Therefore, there is not more than one use on one or more parcels for the purposes of these criteria. The Hearings Officer finds this provision does not apply. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. FINDING: The proposed ski lake parking lot will be located within 100 feet of the boat ramp and boat garages. The passive recreation parking lot will be located within 50 feet of the water feature. The Hearings Officer finds this criterion will be met, if the denial of the permits for the ROF is reversed on appeal. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDING: If the denial of the permits for the ROF is reversed on appeal, the Hearings Officer finds that a condition of approval to ensure compliance with this criterion should be imposed. 5. Parking, Front Yard. Required parking and loading spaces for multi -family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDING: The proposal does not include a multi -family dwelling, commercial or industrial use. The Hearings Officer finds this criterion does not apply. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off- street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: This criterion applies to a parking area for more than five vehicles if the parking area is adjacent to residential uses. The proposed South Reservoir parking lot will be adjacent to at least the residential use on PUD Lot 1. The North Reservoir parking lot is proposed to include only three parking spaces. Accordingly, the Hearings Officer finds this criterion applies only to the South Reservoir parking lot. The ski lake parking area is currently surrounded by mature trees to the north, east and west. In addition to the existing tree cover, the applicant proposes six additional trees on the north and southwest sides of the parking area. If the denial of the permits for the ROF is reversed on appeal, the Hearings Officer finds that a condition of approval requiring maintenance of existing landscaping and installation of the applicant's proposed new landscaping should be required. 3. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. FINDING: The applicant does not propose any parking lot lighting. The Hearings Officer finds this criterion is inapplicable. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDING: As depicted on the applicant's site plan, an access driveway of at least 100 feet is proposed to serve the South Reservoir parking area. The North Reservoir parking area is proposed to include an access driveway of approximately 30 feet. Given this distance, vehicles will not be required to back onto a street or right-of-way. The Hearings Officer finds this criterion can be met if the denial of the permits for the ROF is reversed on appeal. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that. a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or 41 b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or C. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDING: The applicant proposes to eventually pave the parking areas in conjunction with the paving of the PUD roads. If the Hearings Officer's denial of the permits for the ROF is reversed on appeal, a condition of approval should be imposed requiring the applicant to maintain gravel parking areas to mitigate dust impacts between the time of permit approval and paving of the PUD roads. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDING: Table 1, Off -Street Parking Lot Design, of this chapter requires a 24 -foot -wide access aisle for two-way traffic. Per the site plan, all access driveways to, and access aisles within, the parking areas will be at least 24 feet in width. The Hearings Officer finds this criterion may be met if the denial of the permits for the ROF is reversed on appeal. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. FINDING: The Hearings Officer considers the approximately 100 -foot length of pavement from the South Reservoir parking lot to the PUD road to the north, to a be a service driveway. Similarly, the approximately 30 -foot length of pavement from the North Reservoir to the PUD road to the south, is considered to be a service driveway. The applicant proposes new private service driveways to serve both parking areas. As noted above, the driveways and aisles are designed to meet the minimum 24 -foot width for two-way traffic to facilitate the flow of traffic and ensure sufficient room for maneuvering vehicles. Each parking area is proposed to be served by a single driveway, which is the minimum necessary to serve the parking areas. The service driveways connecting to the parking areas are located a significant distance from existing and proposed residential uses, providing for the safety of pedestrians walking from residential uses to the ROF. The 100 -foot and 30 -foot lengths of the driveways extending from the private PUD 42 roadways to the reservoir parking areas ensure vehicles will not be required to back onto a street right-of-way. As discussed herein, the Hearings Officer denies the proposed ROF because the surface mining conducted to create the reservoirs cannot be legitimized or authorized. If this denial is reversed on appeal, the Hearings Officer finds that a condition of approval requiring the service driveways connecting the parking areas to the private PUD roads to be clearly and permanently marked pursuant to this criterion should be imposed, consistent with correspondence between staff and the applicant dated October 9, 2017. 7. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDING: The Hearings Officer finds finds there are two service drives, one each associated with the parking lots for the reservoirs. If the denial of the permits for the ROF is reversed on appeal, a condition of approval to meet this standard should be imposed. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: Both parking areas are proposed to include a minimum 10 -foot landscaped area between the pavement and nearby property lines. If the denial of the permits for the ROF is reversed on appeal, the Hearings Officer finds a condition of approval to require a curb around the outer edge of the parking areas should be imposed to ensure compliance. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) FINDING: The proposed driveways and access aisles will meet the minimum 24 -foot width in Table 1. Based on the site plan, all proposed vehicular parking spaces within the parking lots will meet the minimum nine -foot -wide by 20 -foot -long parking stall dimensions in Table 1. The Hearings Officer finds this criterion can be met if the denial of the permits for the ROF is reversed on appeal. 2. Section 18.116.031. Bicycle Parking. New development and any construction, renovation or alteration of an existing use requiring a site plan review under DCC Title 18 for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of DCC 18.116.031. A. Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. 43 C. When the proposed use is located outside of an unincorporated community, a destination resort, and a rural commercial zone, exceptions to the bicycle parking standards may be authorized by the Planning Director or Hearings Body if the applicant demonstrates one or more of the following: i The proposed use is in a location accessed by roads with no bikeways and bicycle use by customers or employees is unlikely. ii. The proposed use generates less than 50 vehicle trips per day. iii. No existing buildings on the site will accommodate bicycle parking and no new buildings are proposed. iv. The size, weight, or dimensions of the goods sold or unlikely. V. The use of the site requires equipment that makes it unlikely that a bicycle would be used to access the site. Representative examples would include, but not be limited to, paintball parks, golf courses, shooting ranges, etc. FINDING: In Ski Lake I, the HO made the following findings on page 58, With respect to exceptions, the subject property is located outside of any unincorporated community, destination resort and rural commercial zone... Finally, the Hearings Officer finds that given the location of the subject property and the nature of the proposed recreational use, it is unlikely guests will travel to the facility via bicycle. For these reasons, 1 find the applicant's proposal qualifies for an exception to the bicycle parking requirements under subparagraphs (i) ... of this paragraph. This Hearings Officer adheres to the HO findings above and finds that an exception to the bicycle parking standards is warranted. E. Chapter 18.124, Site Plan Review FINDING: Although the Board found only the South Reservoir is a ROF, the applicant requests approval of the ROF to include both the South Reservoir and the North Reservoir. As discussed herein, the Hearings Officer denies the proposed ROF because the surface mining conducted to create the reservoirs cannot be legitimized or authorized. Nonetheless, to create a complete record in the event the denial is reversed on appeal, the Hearings Officer reviews the criteria against both reservoirs. Section 18.124.030. Approval Required. 44 A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following: 3. All commercial uses that require parking facilities; FINDING: The applicant proposes an ROF that requires parking facilities. Therefore, site plan review is required. 2. Section 18.124.060. Approval Criteria. Approval of a site plan shall be based on the following criteria: A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The applicant's burden of proof provides the following argument regarding how site plan approval criteria should apply to development, The county's site plan criteria, including this code section, are written to be applied to uses permitted outright and conditional uses. Because the site plan criteria apply to uses permitted outright, they are not designed to determine whether the proposed use is harmonious with the natural environment and existing development. Rather, site plan criteria dictate how an allowed use will be developed. How the use is developed, not the use itself, is subject to the "relate harmoniously" criterion. With respect to this criterion, the HO in Ski Lake I made the following findings, in relevant part, The applicant's modified burden of proof describes the applicant's proposed recreation -oriented facility requiring large acreage as follows: "Per DCC 18.60.030.E and Board of County Commissioner determinations,. Applicant seeks approval for a `recreation -oriented facility requiring large acreage such as off-road vehicle track or race track, but not including rodeo grounds.' This approval is being sought for motorized boating activity including waterskiing and wakeboarding on the South Pond of the New Reservoir. Motorized activity is limited to the South Pond of the New Reservoir and so conditional use approval regulation is only required for the South Pond. The recreation -oriented facility requiring large acreage is for private use only by the owners of KCDG and limited accompanied guests. It is not and will not be open to the public... The South Pond's configuration dictates that it will be used by one boat at a time. KCDG will limit the motorized boating activity to daylight hours. Use of the M11 recreation -oriented facility will be restricted to protect mule deer during the critical winter deer range season which extends from December 1st of one year through March 31st of the following year. Other proposed conditions to be recorded against adjacent KCDG, Cadwell and Kimble properties as CC&Rs [covenants, conditions and restrictions] restricting uses on the South Pond are20: 1. Prohibit motorized activity during Winter Deer Range season; 2. Only one motorized boat may operate on the South Pond at a time; 3. No jet skis allowed, 4. Operational hours limited to daylight hours; 5. Adhere to all Deschutes County noise ordinance standards, found currently at DCC Chapter 8.08; 6. Boat restrictions include: a. Inboard engines only; b. Self-contained engines with internal oil lubrication systems; C. Stock mufflers or muffled noise equivalent, d. Direct drive or V -drive transmission; e. No two-stroke motors (prevents oil contamination); 7. No alcoholic consumption to be allowed on boats or by skiers; and 8. All motor boat operators must carry the Oregon mandatory boater education card. Therefore, I find that for purposes of site plan review under this section, the "proposed development" consists of both the completed southern reservoir and its recreational use as proposed by the applicant. Section 18.124.060 requires the Hearings Officer to find that the reservoir and recreational use thereof.• • relate harmoniously to the natural environment 20 The current application includes these same restrictions, with the following modifications: (2)(a) Other boats must be stored in the Boathouse or in the harbor area; (4) Operational hours limited to 7:00 am to 10:00 pm; (6)(c) Stock mufflers or quieter; (7) No alcohol to be allowed on boats or use by skiers. 46 relate harmoniously to existing development; minimize visual impacts; and preserve natural features including views and topographical features. Each of these factors is discussed in the findings below. However, before turning to those factors, the Hearings Officer finds I must determine the meaning of the phrase "relate harmoniously." Title 18 does not define either of these terms. However, I find Webster's states the ordinary meaning of the terms includes the following: relate: "to have some connection or relation;" and harmonious: "having parts arranged in an orderly or pleasing way, agreeable; in harmony with; well matched. " Applying these definitions, the Hearings Officer finds that to "relate harmoniously," the southern reservoir and the proposed recreational use thereon must relate to the surrounding natural environment and existing development in a pleasing and agreeable way — i.e., they must be compatible with the surrounding area. 1. Natural Environment. As discussed in the Findings of Fact above, the subject property was the site of the former Klippel surface mine. The record indicates that over 1 million cubic yards of mineral and aggregate material were removed from the Klippel mine before mining ceased. Consequently, mining dramatically altered the previous environment on the subject property. The Klippel mining pits were reclaimed through a combination of grading, re -contouring, and reseeding with native grasses. The record includes a number of photographs depicting the reclaimed mine and vegetation thereon, and showing that vegetation took hold on the majority of the reclaimed site. In 2007, the former Klippel mine received a "Mined Land Reclamation Award" from DOGAMI. Because the portion of the subject property on which the reservoirs are located was mined and reclaimed, and because KCDG conducted additional, unpermitted, surface mining on the reclaimed site to create the reservoirs, the Hearings Officer finds that for purposes of this site plan approval criterion, the relevant "natural environment" is the condition of the subject property and surrounding land as it existed prior to KCDG's mining for the reservoirs. The question, then, is whether the changes to the subject property to create the southern reservoir and to facilitate the recreation thereon are harmonious with that "natural environment." a. Reservoir Appearance. The Hearings Officer finds the best photographs depicting the subject property before and after KCDG's mining for the reservoirs are the two "Google Earth" photographs dated 2012 and 2014 and included in the record as Exhibit 3 to the Bishops' September 29, 2015 memorandum. These photographs show the vegetative cover (trees, shrubs and grasses) that existed on the majority of the subject property, and in particular around the perimeter of the reclaimed mining pits, remained intact following mining for the reservoirs. However, the photographs also show that much of the vegetation planted for 47 reclamation was removed during excavation. As a result, the ground surrounding the southern reservoir, including its banks and the land between the banks and the forested areas, now consists of vast gravel and dirt areas devoid of vegetation. These barren areas can be seen in ground -level photographs that also show steep gravel, rock and dirt banks. The slopes of these banks appear much steeper in places than the sloped edges of the reclaimed mining pits. Moreover, the southern reservoir is long, narrow, and linear in shape and has two man-made dirt and gravel islands to facilitate waterskiing. The Hearings Officer finds the southern reservoir has a distinctly unnatural look that contrasts unfavorably with the surrounding natural environment and is much less harmonious with that environment than were the reclaimed mining pits. The southern reservoir is less natural looking than the northern reservoir which is round in shape and vegetation closer to its banks. 1 understand that man-made reservoirs may not always have the look of a natural water body. Nevertheless, 1 find that where, as here, the southern reservoir is surrounded by a natural environment that consists of forest -- much of which is undisturbed — and irrigated pasture, the reservoir's stark appearance and unnatural shape simply are not harmonious with the natural environment. I find it is not reasonable to expect the property owners to modify the shape of the southern reservoir to make it more natural looking. However, I find the reservoir's appearance may be made more natural looking by re -contouring its steepest banks and revegetating the area between the banks and the surrounding forested areas. Therefore, I find that if the applicant's proposal is approved on appeal, it should be subject to conditions of approval requiring that any of the southern reservoir's slopes that are greater than three feet horizontal to one foot vertical be re-contoured so that they do not exceed that degree of slope, and that the areas between the side of the banks facing away from the southern reservoir and the surrounding forested areas be planted with native vegetation. Finally, as discussed in the findings below concerning wildlife habitat, incorporated by reference herein, 1 have found the property owners also should be required as a condition of approval to replant the barren areas in a manner consistent with ODFW's Fish and Wildlife Habitat Mitigation Policies. b. Wildlife Habitat. The parties strongly disagree about the impact on wildlife from the southern reservoir and the proposed recreational use thereon. Opponents rely on ODFW staff comments in the record Nancy Breuner, ODFW Deschutes Habitat Biologist, submitted a letter dated June 29, 2015 in response to the original applications. Sara Gregory, Wildlife Habitat Biologist, submitted a letter dated September 17, 2015 in response to the modified applications. In her letter, Ms. Breuner identified ODFW's concerns with: and (i) recreational use on the southern reservoir during the winter range closure period, (ii) disruption of deer migration corridors by the presence of two reservoirs and their proximity to one another, (iii) the steepness of and lack of vegetation on the reservoirs' banks; (iv) the loss of native wildlife habitat due to the reservoirs' construction; .• (v) the denuding of upland areas adjacent to the reservoirs. Ms. Breuner recommended that to address these concerns, the county require actions to improve habitat conditions for wildlife on the subject property, including: (i) prohibiting recreational use during the winter range closure period (December through March); (ii) limiting fencing and structures in the area between the two reservoirs; (iii) planting native riparian vegetation along the perimeters of both reservoirs; and (iv) providing habitat mitigation pursuant to ODFW's policies, including planting native upland plants and restoring native habitat lost to reservoir construction. Ms. Gregory's letter added the following recommendations: "ODFW's primary concern regarding KCDG's July 17, 2015 modification of their application is the addition of a parking lot for ten vehicles and request to allow use of the area by up to 20 people. Construction of a parking lot has the potential to eliminate wildlife forage and cover where the lot sits and reduce wildlife use of the surrounding area. Increasing vehicle traffic may increase noise, spread noxious weeds, increase the potential for wildlife vehicle collisions and further diminish wildlife habitat values." Ms. Gregory again recommended KCDG be prohibited from recreational use on the reservoirs during the deer winter range closure period, and be required as a condition of any approval to restore native wildlife habitat lost to construction of the reservoirs. The applicant relies on the written and oral testimony of Paul Valcarce to rebut ODFW's concerns. At the continued public hearing, Mr. Valcarce testified that he is a wildlife biologist and conservationist, as well as a long-time friend of Harris Kimble who has seen the subject property on a regular basis over the last eight years. In a letter dated April 4, 2015, Mr. Valcarce stated that in his opinion, the reclaimed Klippel mining pits did not have suitable wildlife forage, that mule deer are extremely adaptable to human occupation, that "isolated small ponds and lakes have not been shown to have any major impacts on deer movements," and that construction of the reservoirs "provides an opportunity to increase the productivity of the mule deer winter range." Mr. Valcarce did recommend that "the disturbed areas" should be planted with forage plants such as Triticale or other high value cereal grains. In addition, supporters of the applicant's proposal submitted numerous photographs of deer, elk and waterfowl using the subject property and the reservoirs in particular. .E The Bishops and other opponents argue the Hearings Officer should discount Mr. Valcarce's opinion because he is a friend of Harris Kimble. I disagree. I find Mr. Valcarce is qualified to give an expert opinion on wildlife habitat on the subject property. His letter indicates he has a degree in wildlife and fisheries science from the University of Utah, and that he has been employed by both the U.S. Fish and Wildlife Service and the Idaho Fish and Game Department in a variety of wildlife management capacities. Although Mr. Valcarce may well be motivated to testify in favor of the applicant's proposal to support his friend, I find his opinion is consistent with the opinion and recommendations of ODFW's wildlife experts for restoring destroyed wildlife habitat on the subject property through replanting unvegetated areas with suitable forage plants. In addition, I agree with Mr. Valcarce that the fact wildlife are using the reservoirs on the subject property does not signify they provide suitable wildlife habitat compared to what was removed by reservoir construction. The Hearings Officer has found the banks of the southern reservoir and the area between the banks and the forested areas on the subject property now are devoid of vegetation. In addition, photographs in the record suggest that in some places the banks of the southern reservoir are steeper than the sloped edges of the reclaimed mining pits. I find these site conditions clearly show construction of the southern reservoir removed wildlife habitat and forage. For this reason, I find the southern reservoir is not harmonious with the natural environment. I find that if the applicant's proposal is approved on appeal, it should be subject to conditions of approval requiring the property owners to: (i) develop and submit to the Planning Division a wildlife habitat mitigation plan providing for replanting of all barren areas between the side of the banks facing away from the southern reservoir and the surrounding forested areas on the subject property with native plants providing suitable forage for deer and elk, and consistent with ODFW's Fish and Wildlife Habitat Mitigation Policies; (ii) replant all such barren areas in accordance with the habitat mitigation plan; (iii) following such replanting, submit to the Planning Division written documentation from ODFW that such replanting is consistent with its habitat mitigation policies; and (iv) retain all existing vegetation on the subject property. 2. Existing Development. The area surrounding the subject property consists primarily of rural residential subdivisions (Klippel Acres and Saddleback) developed with dwellings and outbuildings on large lots. The surrounding area also includes two active surface mines, Tumalo Creek, and the Tumalo Feed Canal. Existing development on the subject property consists of a single family dwelling and outbuildings. The staff report states, and the Hearings Officer agrees, that neither the southern reservoir nor the proposed recreational use thereon with have any impact on nearby surface mining uses. With respect to existing rural residential development, opponents argue the applicant's proposal is not harmonious considering several factors, each of which is addressed in the findings below. a. Reservoir Size and Appearance. Opponents argue the large size and unnatural appearance of the southern reservoir are not harmonious with their rural residential neighborhood. With respect to size, the Hearings Officer understands that it is not unusual for rural areas to include man-made bodies of water such as 50 irrigation ponds that provide water to irrigate adjacent pastures and landscaped areas. However, the size, shape, and appearance of the southern reservoir are quite different from the typical rural irrigation ponds. The southern reservoir, along with its associated disturbed and developed areas, dominates the southern half of the subject property and is much larger than the vast majority of surrounding lots. The record indicates adjacent and nearby lots in the Klippel Acres Subdivision average five acres in size. And all but three of the thirteen lots comprising the subject property are ten acres or smaller in size, with a mean size of approximately five acres. For these reasons, I find the size of southern reservoir is out of character with the size of the surrounding residential lots. With respect to appearance, for the reasons discussed in the findings above concerning the "natural environment," incorporated by reference herein, the Hearings Officer finds the unnatural shape of the southern reservoir, its steep and denuded banks, and the lack of vegetation between the reservoir and the surrounding forested areas also renders the southern reservoir inharmonious with existing rural residential development. b. Scale of Recreational Use. Opponents argue the scale, intensity, and duration of the proposed recreational use of the southern reservoir are not harmonious with existing rural residential development. The proposed recreational use consists of motorized boating, waterskiing and wakeboarding on the southern reservoir by the property owners and up to 20 invited guests, during daylight hours, seven days per week, and eight months per year. The Hearings Officer finds the RR -10 Zone allows as conditional uses other large-scale recreational and similar uses that could occur with such frequency and duration, such as golf courses, dude ranches, and personal use landing strips, However, only the latter use is permitted in the RR -10 Zone within a deer winter range. And 1 am aware that in at least one previous decision, the county conditioned approval of a personal use landing strip with specific limits on the number of total aircraft landings and takeoffs in order to assure compatibility with surrounding uses. The applicant argues impacts on surrounding rural residences from recreational use on the southern reservoir would be no worse than the impacts from previous surface mining on the site. However, the staff report correctly notes this criterion does not include a "no greater adverse impact' standard. Rather, it requires a determination of whether the proposed recreational use would relate harmoniously to the existing rural residential development. And although it is unlikely the property owners and their invited guests would engage in motorized boating, waterskiing and wakeboarding on the southern reservoir all day, every day, for eight months, that is precisely what they are seeking permission to do. When that potential duration and intensity of use are combined with the large scale of the southern reservoir, the Hearings Officer finds the proposed use looks like the residential cluster development amenity the Bishops and other opponents suspect it is. For that reason, I agree with opponents that the southern reservoir appears out of scale with surrounding rural residential development. Conditional uses are presumed to be compatible, or capable of being made compatible, through imposition of conditions of approval. The applicant has proposed conditions of approval that would have some effect on the impact of the proposed recreational use, including prohibiting motorized boating during the 51 winter deer range season (December through March) and limiting recreational use to daylight hours. The applicant also has proposed "boat restrictions" addressing noise impacts, water pollution, and the fitness of boat operators and skiers. Nevertheless, the Hearings Officer finds these limitations would do little to reduce the overall impact of the proposed recreational use on the surrounding rural residential neighborhood given the scale of the southern reservoir and the proposed duration of the recreational use. The applicant has the burden of demonstrating the proposed recreational use of the southern reservoir will relate harmoniously to existing development in the surrounding area. For the reasons set forth above, the Hearings Officer finds the applicant has not met that burden because of the scale, intensity and duration of the proposed use. c. Noise. Opponents have expressed concern that the noise generated by motorized boating on the southern reservoir will disturb the quiet enjoyment of their rural lifestyle. The applicant has proposed several limitations on the recreational use related to boat noise, including using only one boat at a time on the reservoir, and using only boats with the following characteristics; (ii) inboard engines; (ii) self- contained engines with internal oil lubrication systems; (iii) stock mufflers or muffled noise equivalent, and (iv) direct drive or V -drive transmissions. In addition to the proposed limitations above, the applicant submitted a noise study measuring and evaluating noise generated by a motorized ski boat operating on the southern reservoir. The noise study is dated September 28, 2015, and was prepared by Kerrie G. Standlee of Daly Standlee & Associates, Inc. ("DSA'). At the outset, the Bishops' argue the Hearings Officer should not consider the noise study because operation of a motorized boat on the southern reservoir during the noise testing violated the county's land use regulations and was illegal, and therefore the results of the testing are not admissible under the doctrine of "fruit of the poisonous tree. " I disagree. In the first place, that doctrine applies to criminal proceedings. Second, the doctrine makes inadmissible evidence that was secured through illegal means. However, the boat operation for the noise testing was approved by the county. The record includes an electronic mail message dated August 3, 2015 from Senior Planner Anthony Raguine to the property owners' attorney Liz Dickson authorizing the applicant to operate a motorize boat on the southern reservoir for purposes of conducting a noise study. The record indicates the applicant mailed notice of the dates and times the boat would be operating to the owners of record of all property located within 500 feet of the subject property. For these reasons, I find there is no legal basis for me to exclude the applicant's noise study. The noise study is detailed and extensive. The executive summary explains the timing and method of noise measurement as follows: `In conducting the study, DSA measured the sound radiating from three (3) different models of ski boats, operating individually on the reservoir on Thursday, August 20, 2015, Saturday, August 22, 2015, Sunday, August 23, 2015, and Monday, August 24, 2015. In addition to measuring the boat engine sound, measurements were made of the associated sound typically experienced at 52 properties around the reservoir. Sound measurements for the study were made at three (3) locations around the reservoir (see Figure 1): Lane, 1) On the west side of the reservoir at the residence at 63394 Fawn 2) On the south side of the reservoir at the residence located at 19214 Buck Drive, 3) On the east side of the reservoir near the residence located at 63460 Palla Lane. Observations were made during the measurements to help establish the sources that influenced sound levels found at the three (3) measurement locations both with and without the boats in operation. Information learned during the observation periods was used in conjunction with the measured sound level data to assess the impact of allowing ski boats to operate on the TID reservoir. Data collected during the four (4) days of measurements were analyzed to establish the amount of ski boat sound reaching residences around the reservoir and the amount of ambient sound typically found at the residences without the ski boats. The results of the analysis corroborated what was observed during the measurements: that sound generated by a ski boat operating on the reservoir, while audible at times during observation periods at each measurement location, was typically audible only when the background sound at the measurement location was low enough to allow the boat noise to be distinguished from the background sound. And, the boat sound was audible only when the boat was near the measurement location. On many occasions, ski boat noise was not audible above the background sound caused by wind blowing through leaves in the trees, airplanes and helicopters flying near and far from the site, truck and motorcycle traffic from Johnson Road and automobile traffic on streets and roads local to the neighborhood. On those occasions when the background sound was low enough for the ski boat to be heard, it was generally audible at an individual location for only 20 to 40 seconds each time it approached the measurement location. The length of time it was audible depended on the location and the type of ski boat activity. " The noise study stated testing involved three types of tow sport activities: waterskiing, surfboarding, and wakeboarding. The study stated the noise impacts from the boating and two sports were assessed utilizing Department of Environmental Quality (DEQ) noise standards, which provide that a new noise source located on a previously unused commercial or industrial site would not be allowed to radiate noise to a point within 25 feet of a residence that caused the ambient hourly noise levels (10% and 50% of the time during an hour) to rise by more than 10 decibels (dB). The noise study includes a chart depicting the increase in ambient noise levels at measurement locations with ski boat operations, and showing that at no time during the measurement periods did the ski boat noise exceed DEQ's allowed dB increases. The executive summary went on to state: 53 "Based on the results shown in the table, DSA concludes the noise radiating from ski boat operations on the TID south reservoir on the KCDG property will have an insignificant impact on the acoustic environment typically found at residences around the reservoir. While the noise radiating from boat activity on the reservoir will at times be audible at the residences, the noise will not be out of character from that already found at the residences (both from a level and tonal standpoint) caused by airplanes, helicopters, trucks and motorcycles on Johnson Road, mining operations east and south of the area and wind blowing through the trees." The staff report states Anthony Raguine was present for a portion of the August 24th testing period and includes the following description of Mr. Raguine's observations and impressions from that test. "Staff immediately noted the sound of back-up signals from large equipment working to the east at Surface Mining Site No. 308 and the noise of large trucks traveling up a grade at the mining site. During this testing period, two motor boats were being used. According to one of the owners, Eric Cadwell, one boat was used for water skiing and one was used for wake boarding. Based on this conversation, it is staff's understanding that the wakeboard boat travels at approximately 16 miles per hour (mph) and the water skiing boat travels at approximately 35 mph. During this conversation, staff was standing approximately 40 feet from Mr. Cadwell when the wake boat passed by my location at a distance of approximately 100-150 feet. At its closest approach, although his voice was somewhat difficult to hear, staff could still hear Mr. Cadwell's responses to my questions. Staff then indicated a desire to go along the westerly road to observe the motorboat noise along the residences to the west and adjacent to the southern reservoir. One of the owners, Harris Kimble, offered to drive staff along the westerly road. Staff asked Mr. Kimble to stop at three locations adjacent to 63394 and 63360 Fawn Lane, and 19214 Buck Drive. The eastern property line where staff observed the boating noise at 63394 Fawn Lane is approximately 500 feet from the water associated with the southern reservoir. The eastern property line where staff observed the boating noise at 63394 Fawn Lane is approximately 420 feet from the water. The eastern property line where staff observed the boating noise at 19214 Buck Drive is approximately 250 feet from the water. At each location staff's impression of the boating noise [from both the wakeboard boat and the water ski boat] was as a low droning or buzzing sound. During staff's stop at 63360 Fawn Lane, staff met property owner Erika Lindquist and her two children. Ms. Lindquist and her son indicated that boating noise could be heard within their house via vent pipes and in the front yard, on the other side of the house away from the reservoir. Staff noted during the conversation with Ms. Lindquist that the discussion could continue without the need to elevate voice volume even when the boat passed at its closest point. At all three locations, it is staff's impression that it was difficult to hear the boating noise when there was concurrent backup signals at Surface Mining Site No. 308. Additionally, during one stop at 63394 Fawn Lane, wind speed increased such that the rustling of leaves and branches from nearby trees drowned out all of the boating noise. It is staff's impression that although the boating noise is not loud in 54 terms of volume, it does present a persistent sound that increases in volume at every pass around the reservoir." Opponents challenge the validity and weight of the noise study's conclusions for two reasons. First, they claim that whatever may be the decibel readings for the ski boats, opponents find the boat noise disturbing when they hear it. Second, they question the validity of the noise study's results given the seasonal and time limits on noise measurement. Specifically, they note the noise study was conducted on only four summer days, and only between the hours of 1:00 p.m. and 5:00 p.m. on two measurement days, and between 10:00 a.m. and 2:00 p.m. on the other two measurement days. Opponents argue such limited measurements do not accurately reflect ambient noise and boat operation during other seasons when the property owners proposed to use a ski boat, as well as during early morning and evening hours when many people prefer to waterski — times when ambient noise in the neighborhood might be less. The Hearings Officer finds the DSA noise study is comprehensive and constitutes substantial, credible evidence from which I can find there would be little if any impact from motorized boat noise on surrounding rural residences during the times in which noise measurements were taken. Nevertheless, I share opponents' view that because DSA's noise measurements were limited in time and season, it is not reasonable to extrapolate the study's results, and the conclusions drawn therefrom, across the entire 8 -month, daylight -hour period for which the applicant requests permission to operate a motorized boat on the southern reservoir. I have found there is not sufficient information in this record for me to craft conditions of approval that would sufficiently limit the scope, intensity and duration of the proposed recreational use of the southern reservoir to make it harmonious with the natural environment. I find a similar situation exists with respect to harmony with existing development. The exception is operational limits based on the noise study. I find that if the board approves the applicant's proposal on appeal, it should be subject to a condition of approval limiting motorized boat operations on the southern reservoir, at the very least, to the hours of 10:00 a.m, to 5:00 p.m. to correspond with the times of day during which DSA determined there would be little if any impact from boat noise. d. Impact on Wildlife. The entire subject property is located in the WA Zone protecting the Tumalo Winter Deer Range. At the outset, the Bishops argue that because KCDG conducted surface mining operations during the winter range closure period (in March of 2014), the Hearings Officer should deny the applicant's proposal. The Bishops have not identified, nor have I found, any provision in Title 18 that would provide a basis to deny the applicant's proposal for that reason. However, as discussed in the findings above, incorporated by reference herein, I have found the southern reservoir is not harmonious with the natural environment including wildlife habitat. I have recommended imposition of conditions of approval to mitigate the loss of wildlife habitat in the event the applicant's proposal is approved on appeal. e. Insects. Opponents argue the reservoirs on the subject property have become breeding grounds for insects, and submitted photographs of swarms of flying insects on their nearby residential properties. In response, TID Manager Ken Rieck submitted an affidavit dated June 19, 2015, and stating in relevant part. 55 "3. Both the Upper Tumalo Reservoir and the District's new reservoirs, located on KC Development Group LLC's property, receive water from the same sources, are located at similar elevations, and each are large enough to develop wind driven wave action on their surfaces; 4. In my 25 years of employment with the District, working in and around the Upper Tumalo Reservoir, I do not recall ever having heard a complaint with regard to nuisance mosquitoes around any of the District's reservoirs, nor have I observed mosquito's and 1 would expect the new reservoirs to perform similarly." In addition, in a June 30, 2015 letter, Paul Valcarce stated that in his opinion the design of the reservoirs with a liner and gravel substrate provides limited breeding areas for mosquito's, and that wave action and pond water circulation will obstruct potential insect breeding areas. According to Mr. Valcarce, the owners intend to stock both reservoirs with bluegill fish which feed on mosquito larvae and can inhibit their breeding. Mr. Valcarce also stated that if the swarming insects observed by neighboring property owners are gnats, the reservoirs will not provide breeding grounds for them because gnats breed in wet, moist areas next to canals and pastures rather than in open water. Finally, Mr. Valcarce stated black flies also will not breed in the reservoirs because they prefer breeding habitat with moving water with rocks like Tumalo Creek. Based on the applicant's evidence, the Hearings Officer finds the reservoirs will not be breeding grounds for insects and therefore will not be inharmonious with surrounding rural residential uses for that reason. f. Impact on Local Wells. Opponents argue the reservoirs on the subject property will harm local domestic wells, including wells providing water to the Klippel Water Company. The Hearings Officer understands these arguments to suggest the reservoirs threaten both the quantity and quality of water in these wells. The applicant's submitted materials indicating there are four Klippel wells located south of the southern reservoir at depths of 450 feet and 850 feet, and with yields ranging from 4 gallons per minute (gpm) to 60 gpm. The Bishops respond that there are only two Klippel wells, but agree that they are located south of the southern reservoir. In addition, the applicant submitted a well log for another local well (Hampers -Waters) and argues it shows no impact to that well from either the surface mining to create the reservoirs, or the lining and filling of the reservoirs. The applicant argues that given the depth of the Klippel Water Company wells, it is highly unlikely they would be affected by the reservoirs, based on the fact that logs for these wells dating before and after surface mining in the Klippel pits show no impact on the depth or capacity of these wells from that activity. The Hearings Officer agrees with the applicant that the lined reservoirs are much less likely to affect the wells than surface mining. I also agree that if, as the Bishops suggest, the general direction of groundwater flow in the area is south to north, the location of the Klippel wells south of the reservoir would strongly suggest the reservoirs would not have any effect on the quantity and quality of the groundwater from which the Klippel Water Company draws its water. M For the foregoing reasons, the Hearings Officer finds there is substantial, credible evidence in this record from which I can find the reservoirs will not have negative impacts on local domestic wells in the surrounding area. g. Impact on Avion Water Company Resources. The Bishops argue the reservoirs will have a negative impact on the water sources for Avion Water Company because the water with which TID filled the reservoirs will no longer be stored in Upper Tumalo Reservoir, and therefore seepage from Upper Tumalo Reservoir will not be sufficient to recharge the aquifer from which Avion draws its water. The Bishops rely on a 2014 hydrogeological study performed by Newton Consultants, Inc. The stated purpose of the study was to determine whether the hydrogeology in the vicinity of Upper Tumalo Reservoir is conducive to providing groundwater recharge from surface water resources. The study states Avion had submitted to WRD an application for an aquifer recharge permit. The study concluded that "artificial recharge to the aquifer system in the general area of Tumalo Reservoir" is occurring. Even assuming for purposes of discussion that potential impacts from the reservoirs on distant property are a relevant consideration under this site plan criterion, the Hearings Officer finds the Newton study does not provide sufficient evidence from which I can find the reduction in water stored in Upper Tumalo Reservoir will impair Avion's water supply. h. Impact on TID Water Users. The Bishops argue the reservoirs will negatively impact TID customers who drink their irrigation water by introducing oil and other pollutants from ski boats into the reservoir and TID's water supply. The Hearings Officer understands some irrigation district customers in Deschutes County drink irrigation water. I also understand that because this is not an approved use for irrigation water, TID and other irrigation districts are not required to, and do not, filter or otherwise treat irrigation water to assure it is safe for human consumption. Again, assuming for purposes of discussion that potential impacts from the reservoirs on distant properties are relevant under this site plan criterion, I find there is nothing in this record indicating use of motorized boats on the southern reservoir presents any greater risk to the health of people drinking irrigation water than any other environmental conditions affecting surface water. 3. Visual Impacts. This site plan criterion requires the applicant to demonstrate its proposal would minimize visual impacts. As discussed in the LM Zone findings above, the Hearings Officer has found the southern reservoir will not be visible from either Tumalo Creek or Johnson Road. In addition, I have found there is sufficient existing vegetation on the subject property surrounding the southern reservoir to adequately screen the parking area, boathouse and dock from surrounding residences. For the same reasons, incorporated by reference herein, I find the applicant's proposal will minimize the visual impact of the parking area, boathouse, dock and reservoir on nearby residences. 4. Preservation of Natural Features Including Views and Topographical Features. Based on photographs in the record, the Hearings Officer finds existing views from and across the subject property are of terrain and vegetation and not of mountains or other more distance vistas. The Hearings Officer finds the southern reservoir is of such a low profile that its design minimizes visual impacts on nearby residences. With respect to the boathouse, dock, and guest parking 57 area, I have found existing vegetation on the subject property is sufficient to adequately screen these features from surrounding residences. With respect to topography, the Hearings Officer notes this site plan criterion in Paragraph (A) uses the term "topographical features," while the criterion in Paragraph (B), discussed in the findings immediately below, uses the term "topography." It is unclear whether there is any significance to this difference in terminology — e.g., are "features" special topographical characteristics that differ from the overall topography? Nevertheless, I find photographs in the record of the subject property prior to construction of the reservoirs show there were no special topographical features on the subject property requiring preservation. For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy this sit plan criterion, but may be able to do so with imposition of recommended conditions of approval. Again, the Hearings Officer denies the proposed ROF because the surface mining conducted to create the reservoirs cannot be legitimized or authorized. Nonetheless, to create and preserve a complete record on each of the relevant criteria, each is addressed below. The HO's decision in Ski Lake I constitutes the county's final action on the applications before the Hearings Officer on a previous and substantially similar application for conditional use permit approval for the same ROF use of the reservoirs before me in this matter. In Ski Lake I, the Board of County Commissioners denied review of an administrative appeal and appeals to the Land Use Board of Appeals (LUBA) were dismissed. See ORS 215.422, .427; see also ORS 197.830 (Review procedures) to 197.845 (Stay of decision being reviewed); ORS 197.015(10) (definition of land use decision). Res judicata (claim preclusion) and collateral estoppel (issue preclusion) are equally applicable to final administrative decisions as they are in judicial decisions. North Clackamas School Dist. v. White, 305 Or 48, 750 P2d 485, modified 305 Or 468 (1988) (North Clackamas). Local government quasi-judicial land use proceedings are similar to adjudicative administrative agency proceedings. Therefore, the rules of res judicata apply to these county proceedings. See Gittlesohn v. City of Cannon Beach, 44 Or App 247, 605 P2d 743 (1979) (subsequent action filed in circuit court, to declare building permits were issued in violation of zoning ordinance, precluded because of res judicata effect of prior circuit court proceedings which could have or did determine validity of zoning action). Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the proposed ROF use of the reservoirs. The HO's factual findings in the county's final land use decision in Ski Lake I are binding on this Hearings Officer. As the North Clackamas court stated, there is no reason why the rules of res judicata should not apply where "[t]he same quality of proceedings and opportunity to litigate is present in both proceedings." Id. at 52. The court also stated that where the forum is the same in both the original and subsequent proceedings, it need not consider further the relative competence and responsibility of the two forums. The factual circumstances set forth in the record before this Hearings Officer are substantially unchanged since the HO in Ski Lake I denied the prior ROF application. Each finding specific to the applications before me is addressed as follows, even though I find that I am constrained to deny the applications related to the ROF under the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA, which determined the reservoirs were not legally created: Natural Environment. The HO found that the relevant natural environment is the condition of the mining pit as it existed prior to KCDG's excavation and re -contouring of the pit. Further, the HO found that the area surrounding the reservoir consists of mostly undisturbed forest and irrigated pasture. The Hearings Officer adheres to that finding. Reservoir Appearance. The HO found that the South Reservoir's stark appearance and unnatural shape are not harmonious with the natural environment. The HO found it was unreasonable to expect the property owners to modify the shape of the South Reservoir to make it more natural looking. The HO found the South Reservoir's appearance may be made more natural looking by re -contouring its steepest banks and revegetating the area between the banks and forested areas. The HO did not find the North Reservoir has an unnatural appearance. With respect to re -contouring steep banks, the HO specifically noted that the reclamation completed by the prior mining operator resulted in slopes no steeper than 3HAV (3 foot horizontal:1 foot vertical), and that the alteration by KCDG resulted in some banks having a slope greater than 3HAV. The applicant's Exhibit O is a letter from DOGAMI dated February 19, 2015 detailing a site visit by DOGAMI employee Ben Mundie. In this letter, Mr. Mundie concludes in -water slopes are 3HAV or flatter, which meets or exceeds DOGAMI standards. Mr. Mundie goes on to state above -water slopes are 1 1/2H:1V or flatter, which also meets or exceeds DOGAMI standards. This Hearings Officer finds that, regardless of whether the steepness of the South Reservoir slopes meets DOGAMI standards, such a finding does not change the unnatural appearance of the slopes as evidenced in photographs in the record. Because the application for after -the -fact approval of surface mining to create the reservoirs has been denied in the Final Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA, there is no need to address the question of whether the slopes could or should be contoured to create a more natural appearance, or whether revegetation should be required. Wildlife Habitat. The HO in Ski Lake I found the removal of vegetation .around the South Reservoir was not harmonious with the natural environment. Additionally, the HO found that in some places, the banks of the South Reservoir are steeper than the slopes associated with the previous reclaimed mining pit. The HO found these steeper slopes are not harmonious with the natural environment. For these reasons, the HO found that the applicant should: 1. Develop and submit to the Planning Division a wildlife habitat mitigation plan providing for replanting of all barren areas between the side of the banks facing away from the southern reservoir and the surrounding forested areas on the subject property with native plants providing suitable forage for deer and elk, and consistent with ODFW's Fish and Wildlife Habitat Mitigation Policies; 2. Replant all such barren areas in accordance with the habitat mitigation plan; 59 3. Following such replanting, submit to the Planning Division written documentation from ODFW that such replanting is consistent with its habitat mitigation policies; and 4. Retain all existing vegetation on the subject property. In response to the HO findings, the applicant submitted a Wildlife Habitat Mitigation Plan (WHMP). The WHMP includes a number of measures designed to revegetate barren and disturbed areas associated with the ROF, retain existing vegetation for habitat, and provide for on-going management of these areas. Again, this Hearings Officer finds that the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA, which denies the surface mining application to legitimize the creation of the reservoirs after the fact, compels me to deny the application for the ROF in this Decision because the reservoirs are not legal. As such, there is no basis on which I may require any measures to be taken concerning wildlife habitat, recontouring and/or revegetation in the context of the applications before me. Existing Development. The HO in Ski Lake I found the area surrounding the subject property consisted primarily of residential development, including two subdivisions (Klippel Acres and Saddleback), along with two active surface mines, Tumalo Creek, and the Tumalo Feed Canal. The Hearings Officer adheres to these findings here. Reservoir Size and Appearance. The HO found that the size of the South Reservoir is out of character with the size of the surrounding residential lots. The HO also found the South Reservoir is not harmonious with existing rural residential development because of the steep banks, and lack of vegetation between the reservoir and the forested areas on-site. This Hearings Officer agrees with such findings on the record before me. However, again, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA is that the reservoirs were not legally created in the first place. Scale of Recreational Use. Similar to the operational characteristics presented in Ski Lake I, the applicant proposes a relatively broad period of availability for use of the South Reservoir. When addressing the scale of recreational use considering surrounding residential development, the HO in Ski Lake I found: "...although it is unlikely the property owners and their invited guests would engage in motorized boating, waterskiing and wakeboarding on the southern reservoir all day, every day, for eight months, that is precisely what they are seeking permission to do ... The applicant has proposed conditions of approval that would have some effect on the impact of the proposed recreational use ... The applicant also has proposed "boat restrictions"... Nevertheless, the Hearings Officer finds these limitations would do little to reduce the overall impact of the proposed recreational use on the surrounding rural residential neighborhood given the scale of the southern reservoir and the proposed duration of the recreational use." In the present application, the applicant proposes the same potential scale of use for the South Reservoir as was proposed for Ski Lake I. Even if this Hearings Officer was not constrained to deny the application for the ROF as a result of the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA, which finds the reservoirs were not legally created, I would deny the application because the proposed scale of recreational use of •1 the South Reservoir is not harmonious with surrounding residential development, as was determined by the HO in Ski Lake I. Noise. In Ski Lake I, the applicant submitted a noise study prepared by Daly, Standlee & Associates, Inc. (DSA, September 28, 2015), and submitted it again for this present application. The DSA study measured noise from three different models of ski boats during specified days and times. Ultimately, the HO in Ski Lake I agreed with the study's conclusion that motorized boat operations would result in little, if any, noise impact. The HO went on to recommend a condition of approval limiting boat operation to those times of the day corresponding to the noise testing times. For the present application, a letter from DSA dated May 16, 2017 was submitted to provide additional information regarding noise levels and attenuation. In this letter, DSA addressed the effect dwellings constructed as part of the PUD would have on noise levels generated by ski boats given their assumptions regarding roof ridgeline orientation, elevation at the base of the houses, depth of dwellings, and expected yard setbacks. DSA concluded the proposed dwellings will act as partial sound barriers between the boats and existing homes, decreasing the insignificant noise impact to residences. In response to the recommended condition of approval from the HO in Ski Lake I, the DSA letter offers the following conclusion, Given the fact that the noise impact analysis was based on ambient noise measured on a Sunday, the quietest day of the week, I can state that I would expect the conclusions discussed above would be consistent with your proposed operating hour restrictions of between 7:00 am and 10:00 pm. Because the application for after -the -fact approval of surface mining to create the reservoirs has been denied in the Final Decision in File Nos. 247 -17 -000627 -CU and 247- 17 -000629 -PA, there is no need to address the question of whether imposition of a condition of approval concerning dates and times of usage of the reservoir is appropriate. Impact on Local Wells. In Ski Lake I, the HO found that a lined reservoir is much less likely to affect local wells than surface mining. No new evidence has been submitted to refute this finding. For this reason, the Hearings Officer adheres to the HO finding. . Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. Impact on Avion Water Company Resources. In Ski Lake I, the HO found there is insufficient evidence to conclude that a reduction in water at Upper Tumalo Reservoir will impair Avion's water supply. No new evidence has been submitted to refute this finding. For this reason, the Hearings Officer adheres to the HO finding. . Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. Impact on TID Water Users. In Ski Lake I, the HO found there is nothing in the record indicating use of motorized boats presents any greater risk to the health of people drinking irrigation water than any other environmental conditions affecting surface water. No new evidence has been submitted to refute this finding. For this reason, the Hearings Officer adheres to the HO finding.. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here, 61 Visual Impacts. In Ski Lake I, the HO found the South Reservoir would not result in visual impacts considering the existing vegetation on-site which will screen the boat garages and dock from surrounding residences, and the fact that the reservoir and associated structures will not be visible from either Johnson Road or Tumalo Creek. No new evidence has been submitted to refute this finding. For this reason, the Hearings Officer adheres to the HO finding.. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247- 17 -000629 -PA constrains denial of the applications pertaining to the ROF here, Preservation of Natural Features Including Views and Topographical Features. The HO in Ski Lake I found there are no views of mountains or other distant vistas from the subject property; the design of the South Reservoir and its associated structures would minimize visual impacts on nearby residences; and that there were no topographical features on the subject property requiring preservation prior to the construction of the South Reservoir. Based on the conclusions made by the HO in Ski Lake I, the Hearings Officer finds there are no views or topographical features requiring preservation.. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: In Ski Lake I, the HO made the following finding, In light of the alteration of the topography that occurred before the reservoirs were constructed [referring to the excavation associated with the prior surface mining on-site], the Hearings Officer finds the question under this criterion is whether the pre-existing topography was "preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography." I find the relevant development constraints included the need to create a reservoir of sufficient size and depth to be lined and to hold the amount of water necessary to meet TID's needs as well as to facilitate the proposed recreational use of the reservoir. I further find the existence of the reclaimed mining pits made the landscape and topography suitable for the new reservoirs as it resulted in less excavation than would have been required if the pits had not existed. The Hearings Officer finds the southern reservoir preserved the existing topography to the greatest extent possible considering development constraints and the suitability of the landscape and topography, with the exception of the steepness of the reservoir banks in some places. As discussed in the findings above, I have found that if the applicant's proposal is approved on appeal, it should be subject to a condition of approval requiring the property owners to re -contour the banks of the southern reservoir so that none has a steeper slope than three feet horizontal to one foot vertical. I also have found any approval should be subject to a condition of approval requiring the property owners to retain and preserve all existing trees and shrubs. M This Hearing Officer adheres to the HO finding on the record before me. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: In Ski Lake I, the HO made the following findings, Opponents have expressed concern about the potential for persons to drown in the southern reservoir, particularly if/when it ices over during winter months. The staff report states, and the Hearings Officer concurs, that the southern reservoir presents no greater hazard than is presented by any other accessible open water body such as Mirror Pond in downtown Bend, other ponds in the Bend area built and managed by the Bend Park and Recreation District, and the numerous irrigation ponds located throughout the county. Opponents also argue the reservoir must be fenced as a "public swimming pool."As discussed above, I have rejected that argument. The Hearings Officer understands waterskiing and wakeboarding on the southern reservoir also present the potential for injury or drowning. However, again 1 find the risk from this activity on the subject property is no different from similar activity on other bodies of water. Moreover, I find the applicant has adequately addressed these safety concerns by proposing to limit motorized boating on the southern reservoir to a single boat at a time, to prohibit alcohol use by persons skiing and driving the boat, and to require that anyone driving the boat have an Oregon mandatory boater education card. In addition, the applicant notes the design of the marina area, which is physically separated from the water skiing portion of the southern reservoir, will allow the safe maneuvering, loading and unloading of boats away from the water skiing area. And the applicant's site plan shows the proposed guest parking area would be located over 100 feet from the southern reservoir, providing significant separation between vehicles and pedestrians and boat operations and skiing on the reservoir. Finally, l find that because of the nature of the proposed use, there are no true "public" and "private" spaces requiring a transition area. All proposed activities will occur on Tax Lots 824 and 828, and on the access driveway, all of which would be located on private property controlled by the property owners. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies this criterion. This Hearing Officer adheres to the HO finding on the record before me. Unlike Ski Lake I, this proposal includes the development of residential lots as part of the PUD. I concur with the HO's finding that there are no true "public spaces" associated with the proposed ROF and PUD, thus eliminating the need to analyze any transition from public to private spaces. With respect to providing for a safe environment, the record supports a finding that the design of the ROF includes a number of features to enhance safety. The applicant proposes 24 -foot -wide service drives and aisles to allow adequate two-way vehicular 63 travel and room for vehicular movement within the parking areas. All parking spaces meet the minimum stall dimensions required in Table 1 of DCC 18.116. The service drives connecting the private PUD roads to the parking areas are of sufficient length to preclude the need to back onto a street right-of-way. The burden of proof includes the following additional information: The boat ramp is engineered to a specific grade with texture to promote safe entry and exit. The pond has graduated levels. The South Pond will accommodate a single boat at a time, and so no risk of collision or other accident is likely. The North Pond has a similar low -slope design as well as a number of docks to allow safe ingress and egress for people participating in passive recreation. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDING: The applicant proposes an accessible vehicle parking space in each parking area. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. FINDING: The ROF is proposed to include a single access driveway to each of the parking areas associated with the North and South Reservoirs. Both access driveways are proposed to be located at least 600 feet from any existing building and structures on neighboring lands, and at least 400 feet from potential residential building envelopes associated with the PUD. Distance, and existing and proposed trees, could buffer these driveways from proposed and neighboring buildings and structures. Other than the pavement associated with the parking areas, no separate trails or pedestrian walkways are proposed which could conflict with vehicular driveways and parking spaces. Similar to the driveways discussed above, the parking areas will be buffered by distance and trees from proposed and neighboring building and structures. The Landscape Plan shown in Exhibit AA could provide additional vegetative screening. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets, or surface and subsurface water quality. FINDING: The impervious surfaces proposed to be associated with the ROF are the lined reservoirs, paved driveways and parking areas, boat ramp, docks, and three 952 -square - 64 foot boat garages. Given the limited amount of impervious surface proposed outside of the lined reservoirs, and the fact that the grading of the site will cause stormwater to drain to the reservoirs, I find the ROF has been designed to prevent adverse impacts on neighboring properties, street, or surface and subsurface water quality. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: The proposal includes two parking areas and three boat garages. As noted previously, the parking areas and boat garages will be screened from proposed residential uses and neighboring properties by distance, existing trees, and the landscaping detailed in the Landscape Plan. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDING: No above -ground utility installations are proposed. The burden of proof indicates any utilities necessary to provide power to the boat garages will be underground. This criterion does not apply. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. L Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.). FINDING: The approval criteria for the underlying RR -10 Zone, along with the LM and SMIA Combining Zones, are addressed above. J. All exterior lighting shall be shielded so that direct light does not project off-site. FINDING: The proposal does not include any exterior lighting. The burden of proof states any exterior lighting installed in the future will comply with this criterion. Nonetheless, the Decision in File Nos: 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: The ROF is proposed to include two service driveways that branch off from the private PUD roads and connect to the parking areas. There are no bicycle or pedestrian facilities on nearby properties which would require a connection to the ROF. Additionally, as discussed above, the Hearings Officer finds the applicant qualifies for an exception to the bicycle parking standards and, therefore, no bicycle parking is required. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. 3. Section 18.124.070. Required Minimum Standards. A. Private or shared outdoor recreation areas in residential developments. 1. Private Areas. Other than a development in the Sunriver UUC Town Center District, each ground level living unit in a residential development subject to site plan approval shall have an accessible outdoor private space of not less than 48 square feet in area. The area shall be enclosed, screened or otherwise designed to provide privacy for unit residents and their guests. FINDING: This criterion applies to residential developments subject to site plan review. The proposed PUD is not subject to site plan review. The Hearings Officer finds this criterion does not apply. 2. Shared Areas. Usable outdoor recreation space shall be provided for the shared use of residents and their guests in any apartment residential development, as follows... FINDING: The applicant does not propose an apartment development. The Hearings Officer finds this criterion does not apply. 3. Usable outdoor recreation space shall be provided in the Sunriver UUC Town Center District on a district - wide basis as follows... FINDING: The subject property is not within the Sunriver UUC Town Center District. The Hearings Officer finds this criterion does not apply. 4. Storage. In residential developments, convenient areas shall be provided for the storage of articles such as bicycles, barbecues, luggage, outdoor furniture, etc. These areas shall be entirely enclosed. FINDING: As noted above, the proposed PUD is not subject to site plan review and, therefore, I find it is not subject to this criterion. B. Required Landscaped Areas. 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval... FINDING: The proposed ROF is not a multi -family, commercial or industrial development. The Hearings Officer finds this criterion does not apply. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. FINDING: As discussed above, the parking area associated with the North Reservoir will include three parking spaces, requiring at least 75 feet of defined landscaping. The parking area associated with the South Reservoir will include nine parking spaces, requiring at least 675 square feet of landscaping. Per the Landscape Plan (Exhibit AA), each parking area will be surrounded by well over 1,000 square feet of defined landscaping to include native seed areas, low growing shrubs, and deciduous shade trees. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. C. A landscaped strip separating a parking or loading area from a street shall contain: 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. 3) Vegetative ground cover. FINDING: As discussed above, the North Reservoir parking area are proposed to be adjacent to a proposed private PUD road, requiring a ten -foot landscaped strip. Per the Landscape Plan, the landscaped strip between the parking area and the PUD road would be at least 20 feet wide. This landscaping strip would include trees meeting the spacing requirement, shrubs and native seed areas. 67 The South Reservoir parking area is proposed to be located adjacent to a property line, requiring a five-foot landscaped strip. Per the Landscape Plan, the landscaping strip surrounding the parking spaces would be five feet in width on the north and west sides, and significantly greater than five feet in width on the south side. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than five feet FINDING: The proposed landscaping in the parking areas would be in defined landscaped areas and will have a width of at least five feet. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. f. Provision shall be made for watering planting areas where such care is required. g. Required landscaping shall be continuously maintained and kept alive and attractive. FINDING: The Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. If such decision is reversed on appeal, the Hearings Officer finds that a condition of approval requiring compliance with these criteria could be imposed. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDING: No overhead utility lines exist on-site. C. Non -motorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDING: As addressed above, an exception to the bicycle parking requirements is appropriate. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi family residential developments through the clustering G: of buildings, construction of hard surface pedestrian walkways, and similar techniques. FINDING: The proposed ROF is not a commercial, office or multi -family development. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi family, public or park use. FINDING: The only proposed ROF buildings would be three boat garages. All of the boat garage entrances are connected by the dock, rather than a traditional walkway. The properties comprising the ROF facility are not adjacent to a public street. There are no existing or planned transit facilities in the area, and no pedestrian or bicycle connections on adjacent properties. For these reasons, staff finds the ROF facility is not required to provide walkways to public streets, existing or planned transit facilities, or adjacent properties. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17- 000629 -PA constrains denial of the applications pertaining to the ROF here. C. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. FINDING: As noted above, the boat garages would be connected by the dock, rather than a tradition walkway. Additionally, no other pedestrian walkways are required. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. FINDING: No driveway crossings by walkways are proposed. This criterion does not apply. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDING: Any required accommodations to comply with ADA standards will be addressed during building permit review. Nonetheless, the Decision in File Nos. 247 -17- 000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. F. Chapter 18.128, Conditional Uses 1. Section 18.128.015. General Standards Governing Conditional Uses. Except for those conditional uses permitting individual single family dwellings, conditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The applicant requests two conditional use permits, one for the ROF and one for the PUD. As discussed herein, the Decision in File Nos. 247 -17 -000627 -CU and 247- 17 -000629 -PA constrains denial of the conditional use permit pertaining to the ROF. The following includes analysis of both requested conditional use permits to create a complete record for review. Similar to the HO findings on page 79 in Ski Lake I, for the purposes of addressing suitability of the site to the PUD proposal, this Hearings Officer finds the "site" is the subject property as it existed after the surface mine was reclaimed, and prior to any excavation to create the reservoirs. Recreation -Oriented Facilit Suitability of Site The area which includes the North Reservoir appears to have been cleared and likely historically used for some type of crop. At least since July 2000, a small irrigation pond has been located in the southeast corner of the property identified as tax lot 820 on applicant Exhibit B. The siting of the North Reservoir in this area takes advantage of the previous clearing of the land. The future configuration of tax lot 820 is large enough to accommodate the dimensions of the North Reservoir and the associated parking area. Although the current dimensions of the North Reservoir dwarf the historic irrigation pond, the Hearings Officer finds there is nothing about the siting of the North Reservoir in this area which is unsuitable to the site, particularly given the intended passive recreational use of the North Reservoir. The site of the South Reservoir sits predominantly within the previous surface mining pit and takes advantage of the previous disturbance area. After reclamation, the mining pit was re-contoured and planted with grasses. Siting of the South Reservoir in this area takes advantage of the existing mining pit. Although creation of the South Reservoir 70 removed vegetation from the site, any other location on the subject property would require significantly more excavation and disturbance to previously undisturbed portions of the site to establish the ROF. The Hearings Officer finds the site is suitable for the ROF. Design The North Reservoir is proposed to be comprised of one tax lot as shown in the applicant's Exhibit B. The property which includes the North Reservoir is large enough to accommodate the reservoir dimensions and its use as a passive recreational facility. The North Reservoir is lined and includes a number of docks to facilitate paddleboard and kayaking use. A parking area proposed just south of the reservoir will allow for convenient access for members of the EMA. For these reasons, the Hearings Officer finds the design of the North Reservoir is suitable to the site. The South Reservoir is proposed to be comprised of two tax lots as shown in Exhibit B. The property which includes the South Reservoir is large enough to accommodate the dimensions of the reservoir. The South Reservoir is lined and was developed to include two man-made islands and a harbor. The South Reservoir is proposed to also include three boat garages to facilitate the motorized boating activity intended for the reservoir. A parking area proposed just north of the reservoir will allow for convenient access for members of the EMA. For these reasons, the Hearings Officer finds the design of the South Reservoir is suitable to the site. Operating Characteristics The applicant proposes to use the North Reservoir for passive recreation such as swimming, kayaking and paddle boarding. As noted previously, the North Reservoir will be available for members of the EMA and not available to the general public. Given the generally low intensity use proposed for the North Reservoir, the Hearings Officer finds the operating characteristics of this reservoir are suitable to the site. Per the burden of proof, the applicant proposes the following operating characteristics for the South Reservoir: The South Pond will be used for motorized boating activity such as water skiing, wake boarding, and wake surfing, as well as for passive recreation when not in use for motorized boating. Motorized boating is restricted to a single boat at a time. Hours of operation will be limited to between 7.00am and 10:OOpm, and motorized boating use will be prohibited seasonally to protect mule deer during the critical winter deer range season which extends from December 1st through March 31st the "Winter Range Season." The Applicant recommends that a condition of approval of the ROF be imposed to include the following restrictions related to the motorized boating use in the EMA and to record the EMA in the chain of title to the Subject Property. Proposed restrictions include: 1. Prohibit motorized activity during Winter Deer Range season; 2. Only one motorized boat may be on the South Pond at a time; a. Other boats must be stored in the Boathouse or in the harbor area. 3. No jet skis allowed, 71 4. Operational hours limited to 7.00am to 10:00pm; 5. Adhere to all Deschutes County noise ordinance standards, found at DCC Chapter 8.08, 6. Boat restrictions include: a. Inboard engines only, b. Self-contained engines with internal oil lubrication systems; C. Stock mufflers or quieter, d. Direct drive or V -drive transmission; e. No two-stroke motors (prevents oil contamination); 7. No alcohol to be allowed on boats or use by skiers; and 8. All motor boat operators must carry the Oregon mandatory boater education card. As noted above, the applicant proposes to limit access to the South Reservoir to members of the EMA. Because the South Reservoir would not be open to the general public and considering members of the EMA will have access to the boat garages, the Hearings Officer finds the proposed motorized boating activity would not likely generate significant amounts of traffic which could impact the site. The Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. However, if such decision is reversed on appeal, any future approval of the ROF should include a condition of approval limiting use of the South Reservoir to no more than nine vehicles, matching the number of parking spaces proposed for the parking area. The Hearings Officer finds the operating characteristics of the South Reservoir are suitable to the site. Planned Unit Development Suitability of Site The PUD will be sited around the western and eastern edges of the South Reservoir (PUD Lots 1-7), and along the western rim associated with Tumalo Creek (Lots 8-10). The PUD property is large enough to accommodate the proposed two -acre lot sizes and allow for the development of a single-family dwelling on each lot. Additionally, the Board previously determined that the subject property is suitable to residential development when it approved the zone change from Surface Mining to RR10. The Hearings Officer finds there is nothing about the siting of the proposed lots which will be incompatible with the site. Design The design of the PUD takes advantage of existing roads on-site. The PUD also places the residential lots in the southern portion of the PUD property allowing the preservation of at least 80 percent open space in the middle and northern portions of the property. The design of the PUD property will allow for two points of access into the subdivision, improving access for emergency vehicles in the event first responder access is needed. For these reasons, the Hearings Officer finds the design of the PUD is suitable to the site. Operating Characteristics 72 The PUD is expected to operate much like other residential uses and subdivisions in the area by providing lots to accommodate a single-family dwelling. Each lot is also likely large enough to accommodate an on-site septic system. The Hearings Officer finds there is nothing about the proposed subdivision which will be incompatible with the site. 2. Adequacy of transportation access to the site; and FINDING: Recreation -Oriented Facility Both reservoirs are proposed to be accessed from short service driveways connecting to the proposed private PUD roads. For the same reasons detailed under 18.124.060(K) above, the Hearings Officer finds transportation access to the site will be adequate. . Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. Planned Unit Development Access to the PUD will be from private roads connecting to Johnson Road and Buck Drive. The STR prepared by Kittleson and Associates did not identify any necessary road improvements to accommodate the PUD. Similarly, no necessary road improvements were identified by Road Department or the county's Senior Transportation Planner. However, the Senior Transportation Planner stated: Page 5 of the June 23, 2017 Site Traffic Report by Kittelson & Associates incorrectly states the required minimum intersection sight distances for the proposed private road connecting to Johnson Road. The design speed for Johnson Road shall be 55 MPH, and, pursuant to Tables 9-6 and 9-8 of A Policy on Geometric Design of Highways and Streets (AASHTO, 2011), the required minimum intersection sight distances are 610 feet for a left turn from stop and 530 feet for a right turn from stop. The applicant will need to confirm that the minimum sight distance requirements are met. As a condition of approval, the applicant must confirm minimum sight distance requirements for 55 mph at Johnson Road are met prior to issuance of any building permit. 3. The natural and physical features of the site, including, but not limited to, general topography, natural hazards and natural resource values. FINDING: Recreation -Oriented Facility In Ski Lake I, the HO made the following findings: 1. General Topography. Photographs in the record show the general topography on the subject property prior to excavation for the reservoirs consisted primarily of level areas up to the edge of Tumalo Creek Canyon, and the reclaimed Klippel mining pits which comprised a large depressed area with contoured slopes. The topography of the mining pits was altered significantly to create the reservoirs by making the pits deeper to accept a liner and hold water, and by making the banks 73 steeper in some places. In addition, although creation of the reservoirs left the existing tree cover intact, it removed most or all of the vegetation in and around the reclaimed pits, resulting in large areas of gravel, rock and dirt completely denuded of vegetation. As discussed in the findings above, although the Hearings Officer has found the subject property was suitable for creation of the reservoirs considering the presence of the reclaimed mining pits, I have found the resulting change in topography and landscape that obliterated vegetation rendered the southern reservoir inharmonious with the surrounding natural environment and existing rural residential development. 2. Natural Hazards. The Hearings Officer finds the only natural hazard that existed on the subject property prior to creation of the reservoirs (and which exists at present) is the risk of wildfire. I find that risk is no greater on the subject property than elsewhere on the west side of Bend. And the record includes evidence that water in the reservoirs has been made available and used for wildfire suppression. 3. Natural Resource Values. The Hearings Officer finds the natural resource values that existed on the subject property before creation of the reservoirs and commencement of motorized boating and waterskiing on the southern reservoir were native vegetation and wildlife habitat. I further find the wildlife habitat consisted of vegetation providing both forage and cover, a water source from Tumalo Creek, gently rolling topography, and a relatively quiet and undisturbed rural environment As discussed in the findings above under the site plan approval criteria in Chapter 18.124, 1 have found construction of the reservoirs removed most or all of the vegetation in the reclaimed Klippel mining pits and the surrounding land outside the forested areas, and thereby removed the wildlife habitat that vegetation provided. Based on those findings, incorporated by reference herein, I have found that if the applicant's proposal is approved on appeal, it should be subject to conditions of approval requiring the property owners to develop and implement a wildlife habitat mitigation plan consistent with ODFW's Fish and Wildlife Habitat Mitigation Policies, submit to the Planning Division written documentation from ODFW that the habitat mitigation plan has been completed consistent with those policies, retain all existing vegetation, and leave the area between the two reservoirs free of fencing and other physical barriers. The Bishops and other opponents argue the proposed recreational use will negatively impact wildlife use of the subject property because the sight and sound of motorized boating on the southern reservoir and the increase in vehicular traffic from the property owners' guests will disturb wildlife. The applicant has stated no motorized boating will occur on the southern reservoir during the winter range closure period from December 1 through March 31 each year. The Hearings Officer concurs with the applicant that this limitation will eliminate conflicts between the recreation use and wintering deer. The record contains conflicting evidence concerning the impacts on wildlife from recreational use of the southern reservoir outside the winter range closure months. The applicant's expert Paul Valcarce testified that deer adapt to human presence and activities, and for that reason in his opinion neither the reservoirs nor the recreational use on the southern reservoir will have negative impacts on wildlife. In addition, the record includes numerous photographs of wildlife including deer, elk and waterfowl utilizing the subject property and the reservoirs. However, as discussed above, ODFW expressed concern about impacts on wildlife and their 74 habitat from the reservoirs and recreation thereon. ODFW recommended that the property owners be required to undertake several measures to address loss of habitat and the potential for the reservoirs to create barriers to deer and elk movement. The Hearings Officer has recommended that if the applicant's proposal is approved on appeal, such approval should be subject to conditions of approval requiring the property owners to mitigate for lost habitat and refrain from creating physical barriers in the space between the two reservoirs such as fencing. The Hearings Officer finds that whether the subject property is suitable for the reservoirs and the proposed recreational use on the southern reservoir considering natural resource values — and in particular wildlife habitat -- is a close question. Construction of the reservoirs removed large amounts of vegetation that provided forage, and changed the topography on the subject property from the previous level to rolling terrain to a deeper and steeper -banked depression holding water. The applicant's proposed recreational use of the southern reservoir will generate continuous noise and human activity eight months per year of a much greater intensity and duration than existed before the reservoirs were created. I find all of these factors have and/or will adversely affect wildlife habitat. On the other hand, it appears the reservoirs have provided a new source of water for wildlife. However, on balance, I find the addition of this water source to the existing source of Tumalo Creek does not outweigh the overall negative effects on habitat from the reservoirs and recreational use on the southern reservoir. For these reasons, 1 find the applicant has not demonstrated the subject property is suitable for the reservoirs and the proposed recreational use on the southern reservoir considering natural resource values including wildlife habitat. The Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. Nonetheless, the Hearings Officer addresses each of the issue areas discussed by the HO in Ski Lake I below. General Topography. Under the Site Plan criteria in 18.124.060(B), the HO in Ski Lake I found that KCDG had altered the post -reclamation slopes of the mining pit to such an extent as to not be harmonious with the subject property. Disputing this finding is a DOGAMI letter from Ben Mundie (Exhibit O) indicating the in -water slopes are 3HAV or flatter, which meets or exceeds DOGAMI standards. The letter goes on to state the above - water slopes are 1 1/2H:1V or flatter, which also meets or exceeds DOGAMI standards. As I have found above, compliance with DOGAMI standards does not equate to a finding of the existence of slopes of the South Reservoir that are "harmonious" with the subject property. The Hearings Officer finds that the record shows the reclaimed mining pit was altered such that it is not compatible with general topography of the site. With respect to the North Reservoir, the record does not contain information concerning the general topography of the area prior to the North Reservoir being constructed. However, the Hearings Officer has determined above that the slopes of the North Reservoir appear harmonious with the subject property. Natural Hazards. The Hearings Officer agrees with the HO in Ski Lake I that the primary natural hazard on the site is wildfire risk. Because the only potentially flammable material associated with the reservoirs could be the docks and boat garages, I find the ROF will not significantly increase wildfire risk. Natural Resource Values. As noted above, the HO in Ski Lake I found the natural resource values of the site, pre -reservoirs, consisted of the reclaimed mine including the native vegetation and wildlife habitat that was removed in and around the current location of the 75 reservoirs. On page 62 of her decision, the HO found that the South Reservoir, "...has a distinctly unnatural look that contrasts unfavorably with the surrounding natural environment and is much less harmonious with that environment than were the reclaimed mining pits." On page 63 of her decision, the HO further finds, "...the reservoir's appearance may be made more natural looking by re -contouring its steepest banks and revegetating the area between the banks and the surrounding forested areas." To address the loss of vegetation, the applicant proposes to re -vegetate the disturbed areas around the South Reservoir pursuant to the Landscape Plan shown in applicant Exhibit AA. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. With respect to habitat loss, on pages 64 and 65 of her decision the HO recommended the applicant be required to develop a Wildlife Habitat Mitigation Plan (WHMP); submit written documentation from ODFW that the WHMP has been completed consistent with ODFW's policies; retain all existing vegetation; and leave the area between the two reservoirs free of fencing and other physical barriers. In response to the HO's findings, the applicant submitted the WHMP prepared by Dr. Wendy Wente. The WHMP recommends a number of measures to protect and enhance wildlife habitat, summarized as follows: 1. Preservation of downed logs and standing snags 2. Regular brushing of brush shrub -steppe habitats 3. Plant pastures, areas adjacent to the South Reservoir, and other soil disturbance areas with native shrubs, grasses and forbs 4. Follow ODFW planting specifications, noxious weed management measures, and preferred planting times 5. Use ODFW success criteria as described in Appendix A of the WHMP 6. Assessment by a professional biologist of any alteration of vegetation beyond that prescribed by the WHMP, such as for fire fuels reduction 7. Monitoring and control of weeds and non-native plants 8. Management of western juniper 9. Preservation of live ponderosa pines in the open space areas 10. Prohibition on fire wood cutting or vegetation alteration beyond that prescribed as management for increased habitat value 11. Leash law for domestic dogs 12. Prohibition on livestock 13. One hundred foot building setback from Tumalo Creek for PUD Lots 8-10 14. Motorized boating activities restricted to April 1 through November 30 15. Prohibition of recreational use of off-road motor vehicles in the PUD open space 16. Reduced speed and wildlife crossing signs on roads within the PUD open space 17. Education program for residents and guests 18. Incorporating the WHMP into the CC&Rs for the EMA 19. CC&Rs will require an audit of compliance with WHMP by professional biologist As detailed above, ODFW provided comments specific to the WHMP and the CC&Rs. ODFW's comments are reiterated here for ease of reference, with staff comments below. The Department has reviewed the application materials including the Burden of Proof, Wildlife Habitat Management Plan (WHMP) and the Declaration of Protective Covenants, Conditions, and Restrictions (CC&Rs) and has the following comments: In keeping with the Mitigation Policy, the Department requests that KCDG develop an off-site mitigation plan to compensate for the loss of winter iro range at a ratio of 3:1. An example of an appropriate mitigation strategy would be to work with the Forest Service to improve 314 acres of winter range habitat in proximity to KCDG's property. The Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the applications pertaining to the ROF here. However, if such decision is reversed on appeal, any future approval of the ROF should require the applicant to develop an off-site mitigation plan to offset the loss of deer winter range. Section 4.2.6 of CC&Rs under LOTS AND HOMES should be amended to state that all fencing must comply with the fencing standards in Deschutes County Code 18.88.060 In addition to the above, any future approval of the ROF should include a condition of approval and a modification to the fencing language in Section 4.2.6 of the CC&Rs as detailed under DCC 18.88.070 findings above. Section 4.5 of CC&Rs under LOTS AND HOMES should be amended to state that native landscaping should be >50% of each residential lot. In addition, Exhibit AA (Landscape Plan) should be amended to deemphasize the use of turf around homes. The Hearings Officer finds that ODFW's recommendation should be required as a condition of approval if the ROF is considered for approval in the future. Section 4.10 of CC&Rs under LOTS AND HOMES should be amended to state that allowing domestic animals to harass wildlife is prohibited. Section 5.2 of CC&Rs under OPEN SPACE should be amended to state that domestic animals in the Open Space shall be leashed. The Hearings Officer further finds that both recommendations of ODFW should be required as conditions of approval if the ROF is considered for approval in the future. The Department is concerned about the applicant's proposal to move topsoil from portions of the area preserved as Open Space for wildlife. The stated purpose is for rehabilitating the area around the South Pond but this action has the potential to disturb a large portion of wildlife habitat that may succumb to noxious weeds such as cheatgrass even if reseeded with native plants. The Department recommends that the applicant obtain topsoil for the South Pond from outside the property. The Hearings Officer agrees that a condition of approval requiring topsoil to be obtained from off-site should be imposed if the ROF is considered for approval in the future. The educational program referenced in the WHMP for residents and guests of the Tanager Planned Development about wildlife and habitat maintenance should be presented to the Department for review prior to finalization. The Hearings Officer finds that ODFW's recommendation should be required as a condition of approval if the ROF is considered for approval in the future. Regarding monitoring of the effectiveness of the WHMP: 77 ➢ The Department recommends that the language in section 1. 5.2 of the Easement and Maintenance Agreement read as follows "The Administrator shall hire a professional biologist to conduct an audit of the compliance with the Wildlife Habitat Management Plan". On page 16 of WHMP, Dr. Wente states that one of the avenues to ensure continued monitoring and implementation of the conservation measures is an audit performed every three to five years. The Hearings Officer finds that to ensure compliance with the WHMP a condition of approval requiring Section 1.5.2 of the EMA to be modified to require retention of a professional biologist should be imposed if the ROF is considered for approval in the future. ➢ The party implementing the wildlife habitat conservation measures (i.e. Tanager Development L.L.C. or subsequent administrator) should submit results of audit of compliance to the Department for review. The Hearings Officer finds that ODFW's recommendation should be required as a condition of approval if the ROF is considered for approval in the future. Planned Unit Development The findings for the ROF related to topography, natural hazards and natural resource values (detailed above) generally apply to the PUD as well. The major difference between the ROF and PUD is the need to clear trees and grade building pads within Lots 4-10 to allow for residential development, and the increased risk of wildfire associated with residential uses. Lots 4-10 will require the removal of existing trees and understory to provide building pads for single-family dwellings. The existing topography of Lots 1-10 are generally level. No significant physical features will be impacted by the creation of Lots 1-10 and the residential development associated with them. Given the relatively small acreage associated with this residential development in comparison to the 80 percent open space that is proposed to be preserved, the Hearings Officer finds the impact to native vegetation, wildlife habitat, and natural resource values is minor. This is particularly true here where the applicant proposes to reestablish native vegetation around the South Reservoir as illustrated in the Landscape Plan. Lots 8-10 border Tumalo Creek. To avoid potential impacts to the creek, including habitat impacts, the applicant proposes a 100 -foot building envelope setback from the ordinary high water mark associated with Tumalo Creek. The Hearings Officer finds that a condition of approval requiring the final plat to depict the 100 -foot building envelope setback from the ordinary high water mark of Tumalo Creek should be required. For these reasons, the Hearings Officer finds the PUD is compatible to the site considering the natural and physical features of the site. To address the potential for increased wildfire risk associated with residential uses, the applicant submitted a Wildfire Mitigation Plan (WMP). The WMP discusses a number of measures to reduce wildfire risk including ladder fuels treatment, brush mowing, shelter in place strategy, structural defensible space, building design and materials, use of outdoor non-flammable materials, resident education and enforcement. Section 4.2.9 of the CC&Rs requires all home construction to comply with the construction standards of the WMP. 78 The Hearings Officer finds that a condition of approval should be imposed requiring: (1) compliance with all sections of the WMP, not merely those entitled as, or considered to be "construction standards," and (2) revision of Section 4.2.9 of the CC&Rs accordingly. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). FINDING: Recreation -Oriented Facility In Ski Lake I, the HO in that proceeding made the following findings, The Hearings Officer has found existing uses on surrounding land include rural residences, some small-scale farming, and two active surface mines. 1 find projected uses on surrounding lands would be the same. As discussed in the findings above under the site plan approval criteria in Chapter 18.124, 1 have found the reservoirs and the proposed recreational use on the southern reservoir will not have any impact on nearby mining uses. In addition, 1 concur with staff's assessment that these uses also will not negatively impact residential or farm uses on the EFU- and Forest -zoned land in the surrounding area because of the distances between the reservoirs and these lands. However, I have found the reservoirs and the proposed recreational use on the southern reservoir do not relate harmoniously to rural residential uses on surrounding land because of the size and appearance of the southern reservoir, and because of scale, intensity and duration of the recreational use. The Hearings Officer finds the site plan approval standard requiring that the proposed uses "relate harmoniously" to existing development on surrounding land is equivalent to the conditional use approval criterion that the proposed uses be "compatible with" existing and projected uses on surrounding properties considering their site, design and operating characteristics, adequacy of transportation access, and natural features and resources. Therefore, for the reasons set forth in the site plan findings above, incorporated by reference herein, 1 find the applicant's proposal also is not compatible with existing and projected uses on surrounding properties. In response to the HO findings, the applicant developed the WHMP in conjunction with Dr. Wente to address impacts to wildlife and habitat. The applicant also submitted a Landscape Plan to replace the barren landscape around the South Reservoir with native vegetation. A letter from DSA Acoustical Engineers, Inc. concludes that the future dwellings around the South Reservoir will act as a partial sound barrier, further mitigating noise impacts. The noise letter goes on to state that the conclusion reached above will be consistent with the proposed operating hours of the ROF between 7:00 am and 10:00 pm. Any future dwellings around the South Reservoir will also act as a visual screen for the South Reservoir, breaking up its size and dimensions. As discussed herein, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the conditional use permit pertaining to the ROF. Nonetheless, the Hearings Officer finds that, if the ROF is considered for approval in the future, it can be compatible with surrounding land uses based on the factors listed in DCC 18.128.015(A) with 79 imposition of conditions of approval to ensure compliance with the WHMP, Landscape Plan (modified to require use of off-site soils) and restricting operating hours. Planned Unit Development As determined by the HO in Ski Lake I, the surrounding land includes rural residences, some small-scale farming, and two active surface mines. As discussed under DCC 18.56, the applicant will be required to record a Waiver of Remonstrance to protect Surface Mining Site 293. Due to the density of existing residential development and what appears to be no change in forest or farming practices in the area, the Hearings Officer finds the PUD will be compatible with forest and farming practices in the area. Given the proximity and density of existing rural residential uses, including subdivisions, and the amount of open space to be preserved, I find the proposed PUD will generally be compatible with the existing residential development on surrounding lands. Two concerns regarding compatibility of the PUD with land uses on surrounding properties are addressed. First, the impact of the proposed private PUD road that will be constructed across the northern portion of the Hammock property (tax lot 2700, Assessor map 17-11-13) raised concerns regarding potential impact to privacy and rural character on the use of the adjoining property owner to the north (tax lot 2600, Assessor map 17-11-13). 1 find that the overall volume of vehicle, bicycle and pedestrian trips along this road will be low, such that the proposed PUD road in this location does not alter the overall compatibility of the PUD with surrounding land uses. Second, the question of compatibility of the PUD with potential impact on the Cake Mine is addressed above. For the reasons set forth there, the Hearings Officer finds that no Waver of Remonstrance is required to protect the Cake Mine under the law or facts. I determine that the PUD will be compatible with existing and projected uses in the area. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: Conditions of approval required to ensure the standards of DCC 18.128 are met for the PUD are set forth above. 2. Section 18.128.090. Medical Clinic, Veterinary Clinic, Club, Lodge, Fraternal Organization Community Center, Grange Hall, Golf Course, Horse Stable and Horse Events Requiring Conditional Uses, Grounds and Buildings For Games or Sports Country Club, Swimming, Boating, Tennis Clubs and Similar Activities, Government Structures and Land Uses, Parks, Playgrounds. In considering the above, the Planning Director or Hearings Body may authorize the conditional use after it has been determined that the following will be provided. A. Access from principal streets subject to Deschutes County Road Department standards. :1 FINDING: Access to the ROF is proposed to be met from streets developed to subdivision standards and discussed in detail below under the Title 17 criteria. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the conditional use permit pertaining to the ROF. B. Off street parking subject to DCC 18.116.030. FINDING: Standards under DCC 18.116.030 are addressed above. C. Building and site design provisions, including landscaping, that will effectively screen neighboring uses from noise, glare, odor and other adverse impacts. FINDING: The predominant adverse impact noted by neighbors is noise. As detailed above, the Noise Study and supplemental letter from DSA Acoustics indicate no significant noise impact is expected from the motorized boating activities. No impacts from glare or odor were cited by the neighbors, nor are glare or odor impacts expected given the proposed boating activities. Another potential impact is traffic. However, the Site Traffic Report prepared by Kittleson and Associates indicates no traffic or transportation related impacts are expected. Nonetheless, the Decision in File Nos. 247 -17 -000627 -CU and 247 -17 -000629 -PA constrains denial of the conditional use permit pertaining to the ROF. D. Playgrounds, recreation facilities and community centers in the Wildlife Area Combining Zone are subject to the provisions of DCC 18.88. FINDING: The standards under DCC 18.88 are addressed above. 3. Section 18.128.210. Planned Development. A. Such uses may be authorized as a conditional use only after consideration of the following factors: 1. Proposed land uses and densities. FINDING: The PUD property covers 104.68 acres and will include ten residential lots, for a density of one dwelling per 10.468 acres. This density will match the density of the underlying RR10 Zone and be less dense than the majority of the surrounding rural residential uses. This criterion is met. 2. Building types and densities. FINDING: The residential lots are proposed to be developed with a single-family dwelling and any associated residential accessory structures. Given the relatively small lot size and required setbacks, the Hearings Officer finds that there will not be building density any greater than the existing development density on surrounding properties. 3. Circulation pattern, including bicycle and pedestrian circulation, and a demonstration of how those facilities connect to the County transportation facilities. Private developments with private roads shall provide bicycle and pedestrian facilities. 81 FINDING: The PUD will provide two points of access onto Johnson Road and Buck Drive, both county maintained roads. The PUD will include private roads developed to county standards, including a 20 -foot -wide paved width to accommodate shared vehicle, bicycle and pedestrian traffic pursuant to DCC 17.48.180(F)(1). The Hearings Officer finds this criterion is met. 4. Bicycle and pedestrian connections shall be provided at the ends of cul de sacs, at mid block, between subdivision plats, etc., wherever the addition of such a connection would reduce the walking or cycling distance to a connecting street by 400 feet and by at least 50 percent over other available routes. These connections shall have a 20 -foot right of way, with at least a 10 -foot wide useable surface, and should not be more than 100 feet long if possible. FINDING: No cul-de-sacs are proposed. However, as noted under DCC 17.48.160(E) and (F), staff finds, and I agree, that a cul-de-sac is required at the terminus of the private road at PUD Lot 8. This cul-de-sac will not be located along a block or in an area that could serve as a bicycle and pedestrian connection. Due to the design and location of the lots, no blocks are proposed as part of this development. The PUD does not adjoin a recorded subdivision plat. The Hearings Officer finds these criteria are met. 5. Parks, playgrounds, open spaces. FINDING: The PUD will preserve 80 percent of the subject property as open space. Members of the EMA, which will include all 10 PUD lot owners, will have access to the ROF. The Hearings Officer finds this criterion is met 6. Existing natural features. FINDING: Discussion of existing natural features and the proposed reestablishment of native vegetation is detailed above. 7. Environmental, social, energy and economic impacts likely to result from the development, including impacts on public facilities such as schools, roads, water and sewage systems, fire protection, etc. FINDING: Given the relatively small number of additional residential lots proposed, the record does not evidence any impact to schools. As noted in the STR and by comments from the Road Department and Senior Transportation Planner, the PUD will not result in any transportation related impacts. The applicant proposes a private well system for the residential lots. Each lot will be required to secure on-site septic permit approval. The subject property is located within the Bend Rural Fire Protection District #2. The Hearings Officer finds this criterion is met. 8. Effect of the development on the rural character of the area. FINDING: As noted previously, the Board approved the zone change from SM to RR10, providing the path for residential development. The subject property is in an area already heavily developed with rural residential uses. The Hearings Officer finds this criterion is met, 9. Proposed ownership pattern. FINDING: Per the burden of proof, KCDG intends to maintain title to the open space lands, roads, and ROF. The Hearings Officer finds this criterion is met. 10. Operation and maintenance proposal (i.e., homeowners association, condominium, etc.). FINDING: The applicant intends to form a homeowner's association (HOA). All members of the HOA will be included in the EMA. Property owner members of the EMA will be responsible for maintenance of the private roads, community water system, and open space. The Hearings Officer finds this criterion is met. 11. Waste disposal facilities. FINDING: Each lot will be required to secure on-site septic permit approval. The Hearings Officer finds this criterion is met. 12. Water supply system. FINDING: The applicant states a private well system will be used to provide water to the residential lots. The applicant's Exhibit KK and LL are well logs for nearby properties. The Hearings Officer finds this criterion is met. 13. Lighting. FINDING: No street lighting is proposed at this time. Per Section 4.19 of the CC&Rs, no exterior lighting shall be installed or maintained on any lot, unless approved by the Architectural Review Committee (ARC). The Hearings Officer finds that a condition of approval requiring that any exterior lights installed do not cause any lighting impacts to nearby residences shall be imposed. With such a condition of approval, the Hearings Officer finds this criterion is met. 14. General timetable of development. FINDING: The applicant states an intention to commence construction of subdivision improvements upon receiving land use approval. The Hearings Officer finds this criterion is met. B. The conditional use may be granted upon the following findings: 1. All subdivision restrictions contained in DCC Title 17, the Subdivision/Partition Ordinance, shall be met 83 FINDING: Applicable Title 17 criteria are addressed below. 2. The proposed development conforms to the Comprehensive Plan. FINDING: The Comprehensive Plan does not include mandatory approval criteria. Rather, all policies and goals of the Comprehensive Plan are articulated within specific approval criteria in the zoning and subdivision codes. The proposed density of the PUD matches the density of the underlying RR10 Zone and, therefore, complies with the Comprehensive Plan designation of Rural Residential Exception Area for the subject property. Accordingly, the Hearings Officer finds that the PUD conforms to all applicable zoning criteria, such that the PUD complies with the Comprehensive Plan. 3. Any exceptions from the standards of the underlying district are warranted by the design and amenities incorporated in the development plan and program. FINDING: The underlying RR10 Zone requires a minimum lot size of ten acres. As required by the Wildlife Area Combining Zone, at least 80 percent of the property must be preserved in open space. This requirement, in conjunction with state law which allows lot sizes down to two acres, warrants the two -acre lot size proposed for the PUD. The Hearings Officer finds this criterion is met. 4. The proposal is in harmony with the surrounding area or its potential future use. FINDING: For the reasons set forth above, the Hearings Officer finds the proposed PUD is harmonious with surrounding lands. 5. The system of ownership and the means of developing, preserving and maintaining open space is adequate. FINDING: KCDG will own the open space. Development, preservation and maintenance of open space will be accomplished via the EMA, which will be recorded against the property. The Hearings Officer finds this criterion will be met. 6. That sufficient financing exists to assure the proposed development will be substantially completed within four years of approval. FINDING: The burden of proof states the applicant and its principals have access to sufficient funds to assure the development will be substantially completed within four years of approval. 7. Sixty five percent of the land is to be maintained in open space. FINDING: The applicant proposes to maintain 80 percent of the property in open space. The Hearings Officer finds this criterion is met. 84 8. Adequate provision is made for the preservation of natural resources such as bodies of water, natural vegetation and special terrain features. FINDING: The applicant proposes to impose a 100 -foot building setback from the ordinary high water mark of Tumalo Creek. The WHMP includes measures to maintain and enhance existing natural vegetation on-site. The former mining pit is not a special terrain feature that should be preserved. For these reasons, the Hearings Officer finds this criterion will be met. C. All applications for planned developments shall include the materials and information required for approval of a subdivision as specified in DCC Title 17, the Subdivision/Partition Ordinance and the materials and information required for approval of a conditional use as specified in DCC Title 18. FINDING: The applicant includes a burden of proof and exhibits intended to demonstrate compliance with all applicable Title 17 and Title 18 criteria, as well as applicable state laws. The Hearings Officer finds the information submitted is adequate to comply with the approval criteria. Approval for the conditional use application and the planned development application may be given simultaneously. FINDING: The applicant requests approval of the conditional use permit and planned unit development simultaneously. D. Dimensional Standards: 1. Setbacks and height limitations shall be as determined by the Planning Director or Hearings Body upon review of the evidence submitted. FINDING: The applicant does not propose yard setbacks or a height limitation which differ from the underlying RR10 Zone. The only special setback proposed by the applicant is the 100 -foot building envelope setback from the ordinary high water mark associated with Tumalo Creek. Additionally, the applicant requests an exception from the solar setback standard of the RR10 Zone. Given the small size of the proposed lots, the Hearings Officer finds the requested solar setback exception is appropriate. I further find compliance with the RR10 yard setbacks and height limitation, the proposed Tumalo Creek setback, and the requested solar setback exception are appropriate to the development. 2. Densities shall not exceed that established by the underlying zone. FINDING: The PUD will have a density of one dwelling per 10.648 acres, not exceeding the density of one dwelling per five acres for RR10-zoned properties within one mile of an acknowledged urban growth boundary. The Hearings Officer finds this criterion will be met. 85 3. The minimum lot area, width, frontage and yard requirements otherwise applying to individual buildings in the zone in which a planned development is proposed do not apply within a planned development. An equivalent overall density factor may be utilized in lieu of the appropriate minimum lot area. FINDING: As detailed above, the applicant proposes two -acre lot sizes with a density that will not exceed the allowable in the RR10 Zone. The applicant does not proposed yard requirements which differ from the RR10 Zone. The Hearings Officer finds this criterion will be met. 4. Minimum size for a planned development shall be 40 acres. FINDING: The PUD property is over 104 acres in size. The Hearings Officer finds this criterion will be met. E. Any commercial use permitted outright in an area zoned as an unincorporated community as that term is defined herein will be allowed in a planned development, subject to the following conditions: 1. Each use shall be wholly enclosed in a building. 2. The total area of such uses shall not exceed three percent of the total area of the planned development. FINDING: The applicant does not propose any commercial uses as part of the PUD. TITLE 17, SUBDIVISION ORDINANCE A. Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans Section 17.16.100. Required findings for approval. A tentative plan for a proposed subdivision shall not be approved unless the Planning Director or Hearings Body rinds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such rindings shall include, but not be limited to, the following: A. The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources. FINDING: The proposed PUD will result in the creation of ten lots, each two acres in size, on a 104 -acre property. This density of development is less than the allowable density of one lot per five acres for planned developments within one mile of an urban growth boundary. The PUD will be located in an area already heavily developed with rural residential uses including other subdivisions. The proposal includes a 100 -foot building envelope setback from Tumalo Creek to mitigate impacts to the creek and the preservation of 80 percent of the property in open space. The WHMP includes measures to maintain and enhance natural vegetation on-site. As noted previously, the Hearings Officer finds the PUD will not adversely impact farm or forest lands in the area. The Hearings Officer finds this criterion will be met. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDING: Given the relatively small number of additional lots that will be created by the PUD in relation to number of already developed residential lots in the area, including existing residences within the PUD property, the Hearings Officer finds utilities such as power and phone are available and will not likely create excessive demand. As noted in the STR, and by the Road Department and Senior Transportation Planner, no transportation related improvements are required. The subject property is within the service area of the Bend Rural Fire Protection District #2 and the Deschutes County Sheriff. The Hearings Officer finds this criterion is met. C. The tentative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDING: ORS 92.090(1) requires that a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be platted by the same party or have the consent of the previous party. The applicant is not proposing a continuation of an existing subdivision or a subdivision with the same name as an existing subdivision. Subsection 2 requires that the streets and roads are laid out to conform with existing plats on adjoining property, that streets and roads held for private use are clearly indicated on the tentative plan, and all reservations or restrictions relating to such private roads and streets are set forth thereon. There are no adjoining plats with which the PUD must conform to. The tentative plan indicates all roads are proposed to be private. Subsections 3, 4 and 5 relate to final platting, the requirements of which will be addressed during final plat review. The Hearings Officer finds this criterion will be met. D. For subdivisions or portions thereof proposed within a Surface Mining Impact Area (SMIA) zone under DCC Title 18, the subdivision creates lots on which noise or dust sensitive uses can be sited consistent with the requirements of DCC 18.56, as amended, as demonstrated by the site plan and accompanying information required under DCC 17.16.030. FINDING: The applicable criteria under DCC 18.56 for the SMIA Zone are addressed above. E. The subdivision name has been approved by the County Surveyor. 87 FINDING: Per the applicant's Exhibit NN, the proposed subdivision name of Pura Vida has been approved by the County Surveyor. The final plat will be signed by the Surveyor to ensure compliance. The Hearings Officer finds this criterion is met, 2. Section 17.16.105, Access to subdivisions. No proposed subdivision shall be approved unless it will be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision will have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, buy demonstrating that the road accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for maintenance purposes. FINDING: Access to Pura Vida will be from private roads connecting to Johnson Road and Buck Drive. Johnson Road is an improved collector road maintained by Deschutes County. The Hearings Officer finds this criterion will be met. 3. Section 17.16.115. Traffic Impact Studies. C. Guidelines for Traffic Impact Studies 4. The following vehicle trip generation thresholds shall determine the level and scope of transportation analysis required for a new or expanded development. b. Site Traffic Report (STR): If the development or change in use will cause the site to generate 50- 200 daily trip ends, and less than 20 PM peak hour trips, a Site Trak Report will be required. FINDING: The applicant submitted a Site Traffic Report (STR) prepared by Kittleson and Associates. The STR concludes no mitigation is needed and that the area transportation system can handle the increase in traffic that will be created by the proposed subdivision. No improvements to existing transportation systems were identified by the Road Department Senior Transportation Planner. B. Chapter 17.36, Design Standards Section 17.36.020, Streets. A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with intersection angles, grades, tangents and curves appropriate for the traffic to be carried, considering the terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. FINDING: The applicant proposes to meet the private road standards for the subdivision roads. The layout of roads will provide direct access to each proposed residential lot and generally follows the location of roads existing on-site since at least 1976. The private roads will be paved to a width of 20 feet to provide adequate travel room and circulation for vehicles, bicycles, and pedestrians. There are no principal streets in adjoining partitions or subdivisions which will require the continuation of those streets into Pura Vida. No alterations to road layout or design were identified by the County Road Department. The Hearings Officer finds this criterion will be met. B. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be privately owned. Planned developments shall include public streets where necessary to accommodate present and future through traffic. FINDING: Under this criterion, roads can be private in planned developments unless public streets are necessary to accommodate present and future through traffic. There are no adjoining properties for which public roads would be necessary to provide present and future through traffic. Therefore, the Hearings Officer finds the proposed private street will meet this criterion. 2. Section 17.36.040, Existing Streets. Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. If so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition. FINDING: As noted previously, no roadway improvements are required as part of this development. The Hearings Officer finds this criterion is met. 3. Section 17.36.050 Continuation of Streets. Subdivision or partition streets which constitute the continuation of streets in contiguous territory shall be aligned so that their centerlines coincide. FINDING: The proposed subdivision has no streets which will constitute a continuation of other streets. The Hearings Officer finds this criterion is met. 4. Section 17.36.060, Minimum right of way and roadway width. The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in chapter 17.48 of this title. Where chapter 17.48 refers to street standards found in a zoning ordinance, the standards in the zoning ordinance shall prevail. FINDING: As indicated in the comments from the Road Department, all private roads must be constructed to the private road standards of DCC 17.48. All private roads will be reviewed and approved by the Road Department. With a condition of approval to ensure compliance, the Hearings Officer finds this criterion can be met. 5. Section 17.36.070, Future Resubdivision. Where a tract of land is divided into lots or parcels of an acre or more, the Hearings Body may require an arrangement of lots or parcels and streets such as to permit future resubdivision in conformity to the street requirements contained in this title. FINDING: Although the open space area could theoretically be divided based on the minimum lot size of the underlying RR10 Zone, any land use approval will be conditioned upon preservation of the open space area, which will preclude further division under the current County Zoning Ordinance. Additionally, pursuant to ORS 660-04-0040(7)(e)(H), the open space will be deed restricted to prohibit future division until the open space is included within an urban growth boundary. The Hearings Officer finds a different arrangement of lots is not necessary. The Hearings Officer finds this criterion is met. 6. Section 17.36.080 Future extension of streets. When necessary to give access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDING: Based on a review of surrounding properties, no adjoining lands require the extension of these PUD roads to permit satisfactory future division of land. All adjoining lands which could be divided under their current zoning already have frontage on a county road. The Hearings Officer finds this criterion is met. 7. Section 17.36.100, Frontage roads. If a land division abuts or contains an existing or proposed collector or arterial street, the Planning Director or Hearings Body may require frontage roads, reverse frontage lots or parcels with suitable depth, screen planting contained in a non -access reservation along the rear or side property line, or other treatment necessary for adequate protection of residential properties and to afford separation of through and local traffic. All frontage roads shall comply with the M applicable standards of Table A of DCC Title 17, unless specifications included in a particular zone provide other standards applicable to frontage roads. FINDING: No improvements to county roads were required by the Road Department. The Hearings Officer finds this criterion is met. 8. Section 17.36.110, Streets adjacent to railroads, freeways and parkways. When the area to be divided adjoins or contains a railroad, freeway or parkway, provision may be required for a street approximately parallel to and on each side of such right of way at a distance suitable for use of the land between the street and railroad, freeway or parkway. In the case of a railroad, there shall be a land strip of not less than 25 feet in width adjacent and along the railroad right of way and residential property. If the intervening property between such parallel streets and a freeway or a parkway is less than 80 feet in width, such intervening property shall be dedicated to park or thoroughfare use. The intersections of such parallel streets, where they intersect with streets that cross a railroad, shall be determined with due consideration at cross streets of a minimum distance required for approach grades to a future grade separation and right of way widths of the cross street. FINDING: The subject property is not adjacent to a railroad, freeway or parkway. The Hearings Officer finds this criterion does not apply. 9. Section 17.36.120. Street names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. FINDING: With a condition of approval to ensure compliance, the Hearings Officer finds this criterion can be met. 10. Section 17.36.130, Sidewalks. A. Within an urban growth boundary, sidewalks shall be installed on both sides of a public road or street any in any special pedestrian way within the subdivision or partition, and along any collectors and arterials improved in accordance with the subdivision or partition. B. Within an urban area, sidewalks shall be required along frontage roads only on the side of the frontage road abutting the development. C. Sidewalk requirements for areas outside of urban area are set forth in section 17.48.175. In the absence of a special requirement set forth by the Road Department Director under 91 DCC 17.48.030, sidewalks and curbs are never required in rural areas outside unincorporated communities as that term is defined in Title 18. FINDING: Subsections (A) and (B) do not apply because the proposed development is located outside of an acknowledged UGB. No sidewalks will be required under DCC 17.48.175, which applies to sidewalks in unincorporated communities. 11. Section 17.36.140, Bicycle, Pedestrian and Transit Requirements. A. Pedestrian and Bicycle Circulation within Subdivision. 1. The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will (a) minimize such interference from automobile traffic that will discourage pedestrian or cycle travel for short trips; (b) provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers, and (c) otherwise meet the needs of cyclists and pedestrians, considering the destination and length of trip. FINDING: The private roads will be paved to a 20 -foot width to accommodate vehicles, bicycles and pedestrians. The private roads will provide access to both recreation facilities on-site. There are no nearby existing or planned neighborhood activity centers that the proposed roads must connect to. The Hearings Officer finds this criterion will be met. 2. Subdivision layout (a) Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate. In such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. FINDING: No cul-de-sacs are proposed. The only proposed dead-end street will terminate at PUD Lot 8. There are no street connections possible at this location. The Hearings Officer finds this criterion will be met. (b) Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of a connection will reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. 92 FINDING: There are no existing or planned neighborhood activity centers for which mid - block connections are warranted. (c) Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped properties shall be provided at no greater than 400 foot intervals. (d) Connections shall not be more than 400 feet long and shall be as straight as possible. FINDING: There are no existing local roads that will necessitate alignment of the private roads that connect to Johnson Road or Buck Drive. 12. Section 17.36.150 Blocks. A. General. The length, width and shape of blocks shall accommodate the need for adequate building size, street width, and direct travel routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. B. Within an urban growth boundary, no block shall be longer than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consistent with the provisions of DCC 17.36.140. FINDING: The PUD will not include blocks and the subject property is not within a UGB. 13. Section 17.36.160, Easements. A. Utility easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet in width. FINDING: The applicant proposes to locate all utilities with the roadways as shown on the tentative plan. With a condition of approval requiring any existing or necessary utility easement be included on the final plat, the Hearings Officer finds this criterion can be met. B. Drainage. If a tract is traversed by a watercourse such as a drainage way, channel or stream, there shall be provided a stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or 93 parkways parallel to major watercourses or drainage ways may be required. FINDING: The subject property is not traversed by a watercourse. 14. Section 17.36.170, Lots - Size and shape. The size, width and orientation of lots or parcels shall be appropriate for the location of the land division and/or the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of Titles 18 through 21 of this code, with the following exceptions: A. In areas not to be served by a public sewer, minimum lot and parcel sizes shall permit compliance with the requirements of the Department of Environmental Quality and the County Sanitarian, and shall be sufficient to permit adequate sewage disposal. Any problems posed by soil structure and water table and related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. FINDING: The Hearings Officer finds that the size, width and orientation of lots is appropriate for a planned development in the RR10 zone and the WA Combining Zone. The lots will allow a single-family dwelling to be sited and meet applicable setbacks. The applicant proposes on-site septic for each residential lot. A representative of the Environmental Soils Division will be required to sign the final plat to ensure adequate provision for septic waste disposal. With a condition of approval requiring the applicant to obtain septic site evaluation for each residential lot prior to final plat approval, the Hearings Officer finds this criterion can be met. 15. Section 17.36.180, Frontage. A. Each lot or parcel shall abut upon a public road, or when located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a cul de sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Service or Bureau of Land Management roads. Frontage for partitions off U.S. Forest Service or Bureau of Land Management roads shall be decided on a case by case basis based on the location of the property, the condition of the road, and the orientation of the proposed parcels, but shall be at least 20 feet. In the La Pine Neighborhood Planning Area Residential Center District, lot widths may be less than 50 feet in width, as specified in DCC 18.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards in destination resorts shall be subject to review in the conceptual master plan. B. All side lot lines shall be at right angles to street lines or radial to curved streets wherever practical. FINDING: All proposed residential lots will have at least 50 feet of private road frontage. Generally, lot lines are at right angles to the private roads. The Hearings Officer finds this criterion will be met. 94 16. Section 17.36.190, Through lots. Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along the lines of lots or parcels abutting such a traffic artery or other incompatible use. FINDING: The proposed lots will not have double frontage. 17. Section 17.36.200, Corner lots Within an urban growth boundary, corner lots or parcels shall be a minimum of five feet more in width than other lots or parcels, and also shall have suf icient extra width to meet the additional side yard requirements of the zoning district in which they are located. FINDING: This criterion does not apply because the property is located outside of a UGB. 18. Section 17.36.210, Solar access performance A. As much solar access as feasible shall be provided each lot or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of lots or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. if it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st. B. This solar access shall be protected by solar height restrictions on burdened properties for the benerit of lots or parcels receiving the solar access. C. if the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building line, required by this performance standard is not feasible, supporting information must be riled with the application. FINDING: As discussed previously, the applicant requests, and the Hearings Officer approves, an exemption from the solar setback standards. 19. Section 17.36.220, Underground facilities Within an urban growth boundary, all permanent utility services to lots or parcels in a subdivision or partition shall be provided from underground facilities; provided, however, the Hearings Body may 95 allow overhead utilities if the surrounding area is already served by overhead utilities and the proposed subdivision or partition will create less than ten lots. The subdivision or partition shall be responsible for complying with requirements of this section and shall... FINDING: This section does not apply because the property is located outside of a UGB. The applicant proposes all utilities to be constructed underground. 20. Section 17.36.260, Fire hazards Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDING: The PUD will include two access points at Johnson Road and Buck Drive. The Hearings Officer finds this criterion will be met. 21. Section 17.36.280 Water and Sewer Lines. Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDING: No new sewer lines are proposed. The applicant proposes to use existing shared water wells with water lines serving nearby residential lots. Neither Title 17 nor Title 18 contain construction standards for water lines constructed within private roadways. The construction standards for utilities under DCC 17.48.230-280 apply to utilities within public rights-of-way. With a condition of approval requiring water lines to be installed prior to paving of the new private roads within the PUD, the Hearings Officer finds this criterion can be met 22. Section 17.36.290, Individual Wells. In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. FINDING: The applicant proposes to use existing shared wells on the subject property. 23. Section 17.36.300, Public water system In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal agency. A community water system shall be required where lot or parcel sizes are less than one acre or where potable water sources are at depths Me greater than 500 feet, excepting land partitions. Except as provided for in DCC 17.24.120 and 17.24.130, a required water system shall be constructed and operational, with lines extended to the lot line of each and every lot depicted in the proposed subdivision or partition plat, prior to final approval. FINDING: The proposed use of existing shared wells is not a public water system. The proposed lot sizes are greater than one acre. Per the well logs submitted as applicant Exhibit KK and LL, static water level ranges from 533 feet to 799 feet. Per this criterion, an exception to the community water system requirement is available to partitions only. For this reason, a community water system will be required. This criterion also requires a required water system to be constructed and operational, with lines extended to the lot line of each lot prior to final plat approval. A condition of approval to ensure compliance is imposed below. C. CHAPTER 17.44, PARK DEVELOPMENT Section 17.44.010, Dedication of land. A. For subdivisions or partitions inside an urban growth boundary, the developer shall set aside and dedicate to the public for park and recreation purposes not less than eight percent of the gross area of such development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. B. For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks. C. For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public. D. The Planning Director or Hearings Body shall determine whether or not such land is suitable for park purposes. E. If the developer dedicates the land set aside in accordance with DCC 17.44.010(A) or (B), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County or appropriate park district accept the deed dedicating such land. F. DCC 17.44.010 shall not apply to the subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon Park and Recreation District. FINDING: The PUD property is located outside of a UGB and is not within the boundaries of a formal park district. Therefore, the applicant will be required to dedicate land for the development of a private park open to the public or pay a fee in lieu of dedication as described under DCC 17.44.020. In this case, because the WA Combining Zone requires the preservation of 80 percent of the property in open space, there are no lands outside 97 of the open space and residential lots which are available for park development. For this reason, the Hearings Officer finds the fee in lieu of dedication is available to the applicant. 2. Section 17.44.020. Fee in lieu of dedication. A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that will have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the land, unplatted and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or community facilities at the discretion of the Board and/or applicable park district. B. DCC 17.44.020 shall not apply to subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon Park and Recreation District. FINDING: As discussed above, the applicant has the option of paying the parks fee in lieu of dedicating land for a private park. Although subsection (A) requires the applicant to pay "fair market value", the county historically has calculated the fee based on the $350 per dwelling unit description under DCC 17.44.010(6) above. For this reason, the Hearings Officer imposes a condition of approval requiring the applicant to pay a parks fee of $3,500 ($350 x 10 dwelling units) prior to final plat approval. D. CHAPTER 17.48, DESIGN AND CONSTRUCTION SPECIFICATIONS Section 17.48.100. Minimum Right of Way Width. The minimum right of way width is 60 feet unless specified otherwise in Table A (or in any right of way specifications set forth for a particular zone in a zoning ordinance). (See Table A set out at the end of DCC Title 17.) FINDING: The applicant does not propose any public roads. All roadways will be private. Per DCC 17.48.180(F)(1), planned developments limited to no more than ten residential lots can include 20 -foot -wide paved roads. The Hearings Officer finds this criterion is met. 2. Section 17.48.130. Road Names. All roads shall be named in conformance with the provisions of the Deschutes County uniform road naming system set forth in DCC Title 16. FINDING: A condition of approval to ensure compliance is imposed below. 3. Section 17.48.140. Bikeways. A. General Design Criteria. 1. Bikeways shall be designed in accordance with the current standards and guidelines of the Oregon (ODOT) Bicycle and Pedestrian Plan, the American Association of State Highway Transportation Officials (AASHTO) Guide for Development of New Bicycle Facilities, and the Deschutes County Bicycle Master Plan. See DCC 17.48 Table B. 2. All collectors and arterials shown on the County Transportation Plan map shall be constructed to include bikeways as dehned by the Deschutes County Bicycle Master Plan. 3. If interim road standards are used, interim bikeways and/or walkways shall be provided. These interim facilities shall be adequate to serve bicyclists and pedestrians until the time of road upgrade. FINDING: Per DCC 17.48.180(F)(1), planned developments limited to no more than ten residential lots can include 20 -foot -wide paved roads which are sufficient to accommodate bicycle and pedestrian traffic. No collector, arterial or interim streets are proposed. The Hearings Officer finds this criterion is met. B. Multi -use Paths. 1. Multi -use paths shall be used where aesthetic, recreation and safety concerns are primary and a direct route with few intersections can be established. If private roads are constructed to a width of less than 28 feet, multi -use paths shall be provided. 2. Multi -use paths are two way facilities with a standard width of 10 feet, but with a 12 foot width if they are subjected to high use by multiple users. These paths shall meet County multi -use path standards and shall connect with bike facilities on public roads. FINDING: No multi -use paths are proposed or required. C. Bike Lanes. Six foot bike lanes shall be used on new construction of curbed arterials and collectors. D. Shoulder Bikeways. 1. Shoulder bikeways shall be used on new construction of uncurbed arterials and collectors. 2. Shoulder bikeways shall be at least four feet wide. Where the travel lane on an existing arterial or collector is not greater than eleven feet, the bikeway shall be a minimum of four feet wide. FINDING: No new collectors or arterials are proposed. E. Mountain Bike Trails. ►'• 1. Mountain bike (dirt or other unpaved surface) trails may be used as recreational or interim transportation facilities. 2. Trails used for transportation shall have a two foot minimum tread width and a six foot minimum clearing width centered over the trail, and a minimum overhead clearance of seven feet Trails used solely for recreational use may be narrower with less clearing of vegetation. FINDING: No mountain bike trails are proposed. 4. Section 17.48.160. Road Development Requirements — Standards. A. Subdivision Standards. All roads in new subdivisions shall either be constructed to a standard acceptable for inclusion in the county maintained system or the subdivision shall be part of a special road district or homeowners association in a planned unit development. FINDING: The proposed private roads will be constructed to county standards and maintained by the Administrator of the EMA, as directed by the CC&Rs of the HOA. The Hearings Officer finds this criterion will be met. B. Improvements of Public Rights of Way. 1. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development. 2. All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable road classification, except where a zoning ordinance sets forth different standards for a particular zone. FINDING: As noted previously, the Road Department did not identify any required public road improvements. C. Primary Access Roads. The primary access road for any new subdivision shall be improved to the applicable standard set forth in Table A (or the applicable standard set forth in a zoning ordinance). The applicable standard shall be determined with reference to the road's classification under the relevant transportation plan. For the purposes of this section a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to the subdivision from such a road. FINDING: The primary access roads from Johnson Road and Buck Drive will be private and constructed to a 20 -foot width pursuant to DCC 17.48.180(F)(a). The Hearings Officer imposes a condition of approval to ensure compliance with all other Title 17 road standards and approval of all PUD roads by the Road Department. 100 D. Secondary Access Roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivision. FINDING: The need for a secondary access road was not identified by the Road Department. E. Stubbed Roads. Any proposed road that terminates at a development boundary shall be constructed with a paved cul- de-sac bulb. FINDING: The private road at PUD Lot 8 terminates at the northern boundary of the PUD property. For this reason, the Hearings Officer finds this stubbed road must be constructed as a paved cul-de-sac and imposes a condition of approval to ensure compliance. F. Cul-de-sacs. Cul-de-sacs shall have a length of less than 600 feet, unless a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main road. The maximum grade on the bulb shall be four percent. FINDING: As noted in subsection (E), the Hearings Officer finds a cul-de-sac is required. This cul-de-sac will have a length greater than 600 feet. Therefore, the applicant must secure approval of the cul-de-sac length from Bend Fire Department. The Hearings Officer imposes a condition of approval to ensure compliance. 3. Section 17.48.180. Private Roads. The following minimum road standards shall apply for private roads: A. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two -foot wide gravel shoulders; B. Minimum radius of curvature, 50 feet; C. Maximum grade, 12 percent; FINDING: The proposed private roads will have a paved width of 20 feet with two -foot - wide gravel shoulders. The Hearings Officer imposes a condition of approval to ensure compliance with subsections (B) and (C). D. At least one road name sign will be provided at each intersection for each road; FINDING: The Hearings Officer imposes a condition of approval to ensure compliance. E. A method for continuing road maintenance acceptable to the County; FINDING: The private roads will be maintained by the Administrator of the EMA pursuant to the CC&Rs of the HOA. The Hearings Officer finds this criterion will be met. 101 F. Private road systems shall include provisions for bicycle and pedestrian traffic. In cluster and planned developments limited to ten dwelling units, the bicycle and pedestrian traffic can be accommodated within the 20 -foot wide road. In other developments, shoulder bikeways shall be a minimum of four feet wide, paved and striped, with no on -street parking allowed within the bikeway, and when private roads are developed to a width of less than 28 feet, bike paths constructed to County standards shall be required. FINDING: The PUD will consist of ten residential lots. Therefore, the proposed 20 -foot - wide paved private roads are sufficient to accommodate vehicles, bicycles and pedestrians. The Hearings Officer finds this criterion will be met. 4. Section 17.48.190. Drainage. A. Minimum Requirements. 1. Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the development or roadway. 2. The system shall be designed for maximum allowable development. C. Noncurbed Sections. 1. Road culverts shall be concrete or metal with a minimum design life of 50 years. 2. All cross culverts shall be 18 inches in diameter or larger. 3. Culverts shall be placed in natural drainage areas and shall provide positive drainage. D. Drainage Swa/es. The Design Engineer is responsible to design a drainage swale adequate to control a design storm as defined in the Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council. E. Drainage Plans. A complete set of drainage plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans. FINDING: The Hearings Officer imposes a condition of approval to ensure compliance. F. Drill Holes. Drill holes are prohibited. G. Injection wells (drywells) are prohibited in the public right-of- way. FINDING: No drill holes or injection wells are proposed. 5. Section 17.48.210 Access. 102 A. Permit Required. Access onto public right of way or change in type of access shall require a permit. Permits are applied for at offices of the Community Development Department. FINDING: Any necessary access permits will be reviewed by Planning staff and the Road Department. The Hearings Officer imposes a condition of approval to ensure compliance. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the Applicant's application for conditional use approval, site plan review and landscape management review for a recreation -oriented facility, and APPROVES the Applicant's application for a PUD, conditional use permit, surface mining impact area review and tentative plan review as conditioned below. V. CONDITIONS OF APPROVAL FOR PUD: A. Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. B. All proposed private roads and public road improvements shall be designed and constructed in accordance with Deschutes County Code (DCC) 17.48 and American Association of State Highway and Transportation Official standards. C. Surface drainage systems shall be designed to prevent adverse impacts to public streets (DCC 18.124.060(F)). D. Road construction plans, which will include the intersection improvements at the intersections of the private roads with Johnson Road and Buck Drive, shall be approved by County Road Department prior to commencement of construction within the County right of way (DCC 17.48.060). The construction plan review fee of $250 shall be received by the County Road Department prior to approval. A copy of the final plans with all required signatures shall be provided to the County Road Department upon approval by all agencies. E. The applicant shall construct all road improvements under the inspection and approval of the County Road Department (DCC 17.48.200). The applicant must confirm that all minimum sight distance requirements are met. The applicant may provide a letter to the Department from a professional engineer certifying that the improvements were constructed in accordance with the improvement plans approved by the County (DCC 17.40.040, ORS 92.097). F. For any open space or common area provided as a part of the planned unit development, the owner shall submit proof of nonrevocable deed restrictions recorded in the deed records. The deed restrictions shall preclude all future rights to construct a dwelling on the lot, parcel, or tract designated as open space or common area for as long as the lot, parcel, or tract remains outside an urban growth boundary. 103 G. Prior to final plat approval, the applicant shall complete all property line adjustments necessary to achieve the property configurations depicted on the applicant's Exhibit A and Exhibit B. H. All structures on the subject property shall comply with the yard setback and height limitation standards of the RR10 Zone. I. All buildings shall comply with the lot coverage standard of the RR10 Zone. J. Prior to final plat approval, the applicant shall record with the County Clerk, a Waiver of Remonstrance pursuant to DCC 18.56. A copy of the Waiver shall be submitted to the Planning Division. K. Prior to issuance of any building permit for any structures on PUD Lots 8-10, the property owner shall secure LM approval. L. All single-family dwellings constructed as part of the PUD shall be sited pursuant to DCC 18.88.060 and the analysis provided in the findings therein. M. All fencing constructed as part of the PUD shall comply with DCC 18.88.070. N. Section 4.2.6 of the CC&Rs shall be amended to require compliance with DCC 18.88.070 for all fencing. O. At all times, the Administrator of the EMA shall ensure compliance with the WHMP for the PUD. P. Section 4.2.9 of the CC&Rs shall be amended to require compliance with all sections of the WMP. Q. Except as necessary to comply with the WHMP and WMP, to construct the single- family dwellings and residential accessory structures, and to install all necessary utilities, all existing trees on-site shall be preserved. R. All exterior lighting shall be shielded so that direct light does not project off site. S. Provision shall be made for watering planting areas where such care is required. T. Required landscaping shall be continuously maintained and kept alive and attractive. U. Section 4.10 of CC&Rs shall be amended to state that allowing domestic animals to harass wildlife is prohibited. Prior to final plat approval, the applicant shall submit revised CC&Rs demonstrating conformance with this condition. V. Section 5.2 of CC&Rs shall be amended to state that domestic animals in the Open Space shall be leashed. Prior to final plat approval, the applicant shall submit revised CC&Rs demonstrating conformance with this condition. 104 W. The educational program referenced in the WHMP for residents and guests of the Tanager Planned Development about wildlife and habitat maintenance shall be presented to ODFW for review prior to finalization. X. Section 1.5.2 of the EMA shall be amended as follows, "The Administrator shall hire a professional biologist to conduct an audit of the compliance with the Wildlife Habitat Management Plan". Prior to final plat approval, the applicant shall submit a revised EMA demonstrating conformance with this condition. Y. The audits required by the WHMP shall be submitted to the Planning Division and ODFW. Z. The Final Plat shall illustrate the 100 -foot building envelope setback from the ordinary high water mark associated with Tumalo Creek. AA. All private roads shall be constructed to the private road standards of DCC 17.48 and approved by the Road Department. BB. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. CC. All utility easements shall be shown on the final plat. DD. Prior to final plat approval, the applicant shall secure septic approval for each residential lot. EE. All water lines serving the subdivision shall be installed prior to paving of the associated sections of the private subdivision roads. FF. Prior to final plat approval, the applicant shall secure any necessary approval from the Deschutes County Health Department for the community water system. GG. Prior to final plat approval, the community water system shall be constructed and operational, with lines extended to the lot line of each lot. HH. Prior to final plat approval, the applicant shall pay a parks fee of $3,500 ($350 x 10 dwelling units) to the Community Development Department. All roads shall be named in conformance with the provisions of the Deschutes County uniform road naming system set forth in DCC Title 16. JJ. The northern terminus of the private road at PUD Lot 8 shall be constructed as a cul-de-sac bulb constructed to Title 17 standards and approved by the Road Department. This cul-de-sac shall be depicted on the final plat. KK. The applicant shall secure approval from the Bend Fire Department for the cul-de- sac length referenced in condition of approval PP and the findings under DCC 17.48.160(E) and (F). 105 LL. The following minimum road standards shall apply for private roads: 1. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two -foot wide gravel shoulders; 2. Minimum radius of curvature, 50 feet; 3. Maximum grade, 12 percent. MM. At least one road name sign will be provided at each intersection for each road. NN. Minimum Requirements - Drainage. 1. Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the development or roadway. 2. The system shall be designed for maximum allowable development. 3. Road culverts shall be concrete or metal with a minimum design life of 50 years. 4. All cross culverts shall be 18 inches in diameter or larger. 5. Culverts shall be placed in natural drainage areas and shall provide positive drainage. 6. The Design Engineer is responsible to design a drainage swale adequate to control a design storm as defined in the Central Oregon Stormwater Manual created by Central Oregon Intergovernmental Council. 7. A complete set of drainage plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans. 00. Access onto public right of way or change in type of access shall require a permit. Permits are applied for at offices of the Community Development Department. SYSTEM DEVELOPMENT CHARGES Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937 per p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore the applicable SDC is $3,189 ($3,937 X 0.81). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. r -- Stephanie Marshall Hicks, Hearings Officer Dated this 6'" day of February, 2018 Community Development Department Planning Division Building Safety Division Environmental boils Division P,O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes,org/cd APPEAL APPLICATION FEE: , `' ,� ; ills EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Phone: Mailing Address: C.S Lpo ' City/State/Zip: CDe—c)' Land Use Application Being Appealed: ` � -�. — I ` — i. o - Co Property Description Appellant's Signature: Townshiplq. _ Range Sect .- Tax Lot % EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Performed with Pride NOTICE OF APPEAL (This page may be photocopied if additional space is needed.) February 7, 2018 Via Hand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner .Henderson Commissioner Baney 1300 NW Wall St. 2nd Floor Bend, OR 47703 Re: Appeal of file no. 247 -17 -000627 -CU Dear Commissioners, We represent KC Development Group, LLC ("KCDG"). On January 25, 2018, Hearings Officer Hicks issued a decision denying KCDG's application for conditional use approval of surface mining in conjunction with an irrigation district, file number 247 -17 -000627 -CU. For the reasons set forth in the attached Notice of Appeal, KCDG appeals that denial. KCDG has been before the Board of County Commissioners ("BOCC") before. In April of 2015, the BOCC determined that additional permitting was necessary for KCDG's and the Tumalo Irrigation District's planned uses for the property. The current decision for which KCDG seeks de novo review, includes legal errors that are likely to be reversed before the land use board of appeals ("LUBA") before a decision on the merits of the application may be reached. We ask that the BOCC hear this appeal and address both the legal errors and merits of the application. This will provide a fair review of the proposed application to applicant and the broader public. Waiting for a remand from LUBA risks negative code interpretations as determined by LUBA, and delays further review on the merits of the application. We respectfully ask that the BOCC take action now and accept the appeal, de novo. Applicant has agreed to waive the 150 -day clock until June 30, 2018, and shall work with staff to make any other accommodations as is necessary. Sincerely, J. Kenneth Katzaroff, OSB # 143550 I yy Liz Fancher, OSB # 812202 Attorney for KC Development Group, LLC Attorney for KC Development Group, LLC NOTICE OF APPEAL KC Development Group, LLC ("KCDG"), hereby appeals the denial of application 247 -17- 000627 -CU in the "Decision of the Deschutes County Hearings Officer" entered in File Numbers 247 -17 -000627 -CU and 247 -17 -000629 -PA by hearings officer Stephanie Hicks dated January 25, 2018 and mailed January 26, 2018. This decision is referred to herein as the "2018 Hicks decision" to differentiate it from prior decisions regarding the subject property. KCDG is the applicant and a party in 247 -17 -000627 -CU. KCDG only appeals the denial of File No. 247 -17- 000627 -CU and not the approval of File No. 247 -17 -000629 -PA. KCDG has attached it's cover letter to this Notice of Appeal as Exhibit A. The Board of Commissioners ("Board") should review and reverse the 2018 Hicks decision because it removes the "on-site construction" exemption from surface mining from the County's code. The "on-site construction" exemption is regularly relied upon throughout the County during permitting for new uses. The Board should also review the decision to provide KCDG a review on the merits of its conditional use permit application, a review it was entitled to receive by DCC 22.28.040. The hearing officer denied KCDG such a review by erroneously applying principles of issue and claim preclusion to this application as follows: "Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the nature, impact and suitability of the surface mine work." 2018 Hicks Decision, p. 15. The following background is relevant: KCDG graded two pre-existing mining pits to establish two large, lined ponds on its property in 2014 after being told by County staff that no County permits were required. Permits were not required because the work was believed to be exempted from surface mining as on-site construction but no land use decision was issued to that effect. The primary purpose of the ponds is to be used by KCDG for aesthetic and recreational uses, including motorized boating activity on the southerly pond. KCDG is seeking a water rights permit for this use. KCDG would also like to allow Tumalo Irrigation District ("TID") to use the ponds for water storage and reregulation purposes. Another purpose is to provide a source of water for fighting fires. The ponds were the primary source to fight the Two Bulls Fire in 2014. In 2014, a decision by hearings officer Karen Green, the "2014 Green decision," found that the primary purpose of the pond excavation work was "other on-site construction." Ms. Green determined that although the establishment of the ponds would normally be exempted from the definition of "surface mining" and land permitting as "on-site construction," a more specific provision of the code required conditional use approval of surface mining "in conjunction with" an irrigation district, in order for TID to use the ponds as intended. Ms. Green also determined that KCDG required conditional use approval of a "recreation -oriented facility requiring large acreage" to allow water skiing. In spring of 2015, the Board affirmed the 2014 Green decision. Following the Board's decision, KCDG and TID filed the conditional use applications. In early 2016, hearings officer Green denied the two conditional use permit applications. Ms. Green Page 1 of 4 determined she could not issue the surface mining/reservoir permit for use of the ponds by TID unless KCDG or TID obtained approval of a plan amendment to add the subject property to the non-significant Goal 5 surface mining inventory list. The Board declined to hear appeals of this decision. In June of 2016, KCDG and TID suspended the proposed uses pending final land use approval. It worked diligently to develop a complete plan of development that would address the issues that resulted in denial of the 2015 applications. It also applied for approval of the plan amendment needed to allow TID to use the ponds for water storage. In 2017, KCDG and associated Tanager Development, LLC, filed new applications as allowed by DCC 22.28.040. The applications requested approval of the conditional use permits required by the Board's 2015 decision, a planned development that provides buffering between the South Pond and neighboring property owners and the plan amendment required by the 2016 Green decision. The applications included a more robust wildlife plan and a landscaping plan requested by Ms. Green. The 2018 Hicks decision followed. The 2018 Hicks decision reversed the Board's 2015 determination that the KCDG ponds involved surface mining in conjunction with an irrigation district. The decision also The Board should hear this appeal, reverse the 2018 Hicks Decision and approve the conditional use application for the following reasons: 1. The 2018 Hicks Decision finds that the KCDG ponds were not constructed in conjunction with TID. As a result, conditional use permit approval of surface mining is not required because it was on-site construction allowed outright by the County code. The Board's 2015 decision and the 2016 Green decision both recognize that surface mining, but for TID's intended use, is on-site construction allowed outright by the County's code. 2. KCDG did not ask the county to determine whether surface mining not in conjunction with an irrigation district is allowed in the RR -10 zone and resolution of the issue is not necessary to determine whether to approve the conditional use application for surface mining in conjunction with an irrigation district. The decision's erroneous legal determination that surface mining is not allowed in the RR -10 zone, therefore, is nonbinding dicta and should be stricken from the decision. The 2018 Hicks decision erroneously applied the definition of "surface mining" provided by ORS 517.750 rather than the definition provided by the County's acknowledged land use rules based on the erroneous conclusion that ORS 517.780 preempts the County's acknowledged land use regulations. ORS 517.750, by its terms, applies only to the provisions of the State's reclamation law (ORS 517.702 to 517.989); not to land use reviews by Deschutes County. 4. The 2018 Hicks decision erred in finding that ORS 517.780 preempts the County's definition of "surface mining." This decision conflicts with all prior County decisions regarding the ponds and the 2016 KG Ranch decision issued by Hearings Officer Hicks Page 2 of 4 in File No. 247 -15 -000221 -CU. ORS 517.780 does not define surface mining and it does not say that definitions of ORS 517.750 preempt definitions of the same terms in County land use laws. ORS 517.780 gives DOGAMI, with certain exceptions, the exclusive right to issue operating permits and to approve mine reclamation plans for surface mines. It does not strip local governments of the right to adopt land use rules regarding surface mining. If the County agrees with the preemption argument in the 2018 Hicks decision, the only consistent reading of ORS 517.780 is that DOGAMI has sole authority to regulate the surface mining on the KCDG property. The County, therefore, should defer to DOGAMI's resolution of the matter. DOGAMI has closed its file without requiring a permit for excavation of the KCDG ponds. The 2018 Hicks decision violates DCC 22.28.040. This law gives KCDG the right to refile a denied land use application and to obtain a new decision from the county. The 2018 Hicks decision found that all issues determined by the 2016 Green decision, other than the issue whether mining occurred in conjunction with an irrigation district, are binding on KCDG due to the legal theories of issue and claim preclusion. This is a clearly erroneous decision. The Oregon Court of Appeals has held that claim preclusion does not apply where a county code allows an applicant to refile a denied application. Issue preclusion does not apply unless the issue presented is identical and number of additional conditions are present that merit application of the rule. Lawrence v. Clackamas County, 180 Or App 495, 43 P3d 1192 rev den 334 Or 327, 52 P3d 435 (2002). LUBA has also ruled that land use proceedings are not the type of proceeding to which courts give preclusive effect, at least against an applicant seeking approval of a previously denied application. Campbell v. Werner, 67 Or LUBA 53, footnote 4 (2013)(describing its ruling in Lawrence). 7. The hearings officer erred by failing to address legal arguments the applicant presented that addressed the issue and claim preclusion issues discussed in paragraph 6, above. The case law relied on by the hearings officer is not "on point" as it does not address the role of either rule in the context of the administrative review process currently used to review land use decisions. The 2018 Hicks decision misconstrued the applicable law, DCC 18.128.015 (A) and (B), to impose a legal requirement not found in the law — that structures associated with conditional uses be or appear "natural." It is impractical and impossible for any building or structure to meet such a requirement. The County has never required that each new improvement, use, or development be "natural looking," only that sufficient mitigation measures exist so that the use will be compatible with existing and projected uses on surrounding properties. Here, the efficacy of the offered mitigation measures was not even analyzed. The decision does, however, say that if it is reversed on appeal, that the mitigation measures should be required to be followed as a condition of approval. This implies that the offered mitigation is more than sufficient to meet the compatibility criteria. Page 3 of 4 A complete list of the issues raised by KCDG is provided as Exhibit B of this Notice of Appeal. This list is provided for the primary purpose of preserving issues for review by LUBA if the Board declines review. The applicant requests that its appeal be heard de novo. A de novo review is necessary to allow the Board to fully and properly evaluate the significant policy issues identified above. De novo review will allow the Board to ask questions and seek additional evidence on these and other issues it determines are relevant. The applicant requests that the Board waive the requirement that it file a transcript as allowed by DCC 22.32.024(D). This request is made because the appellant is requesting a de novo hearing and a video recording of the hearing below is available to the Board and parties. The applicant agrees to toll the running of the 150 -day clock until June 30, 2018. The applicant will also consider granting additional extensions if needed to give the Board sufficient time to fully consider and resolve the issues involved in this case. If the Board rules in favor of the applicant on appeal, the applicant is willing to prepare a draft decision for consideration by the Board to reduce the impact of this appeal on County staff. Respectfully submitted this 7th day of February, 2018. lien Katzaroff, OSB # 143550 � Attorney for KC Development <_irou}x,-1.,1 t' Liz Fancher, OS T-9 812202 Attorney for KC Development Group, LLC Page 4 of 4 EXHIBIT A —Notice of Appeal (KCDG) February 7, 2018 Via Hand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner Henderson Commissioner Baney 1300 NW Wall St. 2nd. Floor Bend, OR 97703 Re: Appeal of file no. 247 -17 -000627 -CU Dear Commissioners, We represent KC Development Group, LLC ("KCDG"). On January 25, 2018, Hearings Officer Hicks issued a decision denying KCDG's application for conditional use approval of surface mining in conjunction with an irrigation district, file number 247 -17 -000627 -CU. For the reasons set forth in the attached Notice of Appeal, KCDG appeals that denial. KCDG has been before the Board of County Commissioners ("BOCC") before. In April of 2015, the BOCC determined that additional permitting was necessary for KCDG's and the Tumalo Irrigation District's planned uses for the property. The current decision for which KCDG seeks de novo review, includes legal errors that are likely to be reversed before the land use board of appeals ("LUBA") before a decision on the merits of the application may be reached. We ask that the BOCC hear this appeal and address both the legal errors and merits of the application. This will provide a fair review of the proposed application to applicant and the broader public. Waiting for a remand from LUBA risks negative code interpretations as determined by LUBA, and delays further review on the merits of the application. We respectfully ask that the BOCC take action .now and accept the appeal, de novo. Applicant has agreed to waive the 150 -day clock until June 30, 2018, and shall work with staff to make any other accommodations as is necessary. Sincerely, J. ,l'Cenneth Katzaroff, OSB # 143550 ' .. Liz Faucher, OSB # 812202 Attorney for KC Development Group, LLC Attorney for KC Development Group, LLC (D � v 0 vCD n n (D v0 � — _._- w o o���� do :•� o tea! CD i C n w CL w R. o ° O CD n p ° y �' '.`.3 •? fro (CD ,� O 'Li CD Cn o n ° ° n n Y` � • C, � ti �' �y A. `°� n �•{ o Con CD n � • w a I 'O �N o O CD 0 p • N `C3 i3. O CD CD P N Q w aU, o pq tp CDCD CLCD-� M CL rip CD O O CCD p O n o. a cdD a ww �• O' n a- o• i Q �o cD y w (D •N�`~ w•t N ' n' c' C � a n p O . CD O ^1 N h 0� QQ p ty (D (D C3 <o ClQ (D � A a� o oCD ar o o 5�• w ' a w n a - �. �° o n o a o ` ?y e w CL w SaoCD Q- U v t3 v Q ¢ O UQ0 CD CD _K O @ CD a CD O tD (D Q` n C P- CS b O' CD wa tom. 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(DD C R CD �� A • cD (7 asa E" '� b� o o'er x» ro o o �rn Q < � � CD cr a- N w w `� a Cp o afro CL w tai G. .•t (�� .s = cD tD cD cD .0 1"N �� !y (�D �C N ''• 'd .ts ° o O (D W O N d G O p, Or* n n o W O O C CD "'h ° C `T o '� yCD t9 C S3. `t .ti C C ` CD r(D ° .. O. R• j E, ,Z- 'q Nt Q "1 `G O Q %,� s o t3 H O O In CD rz N N° J{ n W o �+cD A to p CD r O • n o "� �cqs @ '' p a' �� o C r A �_ Y ° a. (D C C1 CD cs. CD G I C"D CD CD w n o G. -2D}"^,• rt C' ti°• CD a a r+ o' `C °� p O W w o v, ¢ vo CD CL H a ° a o a"to J=Z C7 °' q EL °, �"n a _ (D rD 5• H K r 0 CD '"' '`"�'. 0 (D Q CL yy C G O (CD O 0 0 N CD w• W M O *fit (D• (D - t0 m tO I N 2 ¢ VA I Community Development Department Planning Division Building Safety Division Environmental Soils Division P,O, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax; (541) 385-1764 http://www.deschutes.org/cd APPEAL APPLICATION FEE: $3884.75 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Central Oregon LandWatch Phone: ( 541) 647-2930 Mailing Address: 50 SW Bond Street, Suite 4 City/State/Zip: 97702 Land Use Application Being Appealed: 247 -17 -000629 -PA, Plan Amendment Non-significant Mining Inventory Property Description: Township 17S Ran Appellant's Signature: Section 13 Tax Lot 820, 824, 828 EXCEPT AS PROVIDED IN 'SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services Per tinned with Pride NOTICE OF APPEAL See attached letter. ..................__... (This page may be photocopied if additional space is needed.) February 6, 2018 Deschutes County Board of Commissioners c/o Anthony Raguine Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: Apl)eal of Hearings Officer's Decision on File Number: File No. 24 7 -1 7 -000629 -PA Via Hand Delivery Dear Chair DeBone and Commissioners: a2y7-/9-©ooi-_?U_ 4 www,centraloregonlandwatch.org RECEIVED OWWOS County ODD Central Oregon LandWatch is appealing the Hearings Officer decision for File No. 247 -17 -000629 -PA dated January 25, 2018 which misinterprets and misapplies applicable law. This letter is in support of our attached appeal petition. 1. DCC .18.128.280(D)(2); non-significant mineral and aggregate resource list The Hearings Officer's decision misinterprets the Deschutes County Code and OAR 660- 023-0000. That rule implements Goal 5 and specifies which Goal 5 sites should and should not be included on a local government's inventory. Non-significant aggregate sites are not included in a Goal 5 inventory. OAR 660-023-0030 ("The purpose of the inventory process is to compile or update a list of significant Goal 5 resources in a jurisdiction.") The procedure established under OAR 660-023-0000 is: 1) identify significant aggregate or mineral resources; 2) compile or update the inventory of significant sites; 3) determine whether to authorize mining of a significant aggregate or mineral resource. There is no provision in the Oregon administrative rules for mining of non-significant aggregate resources. "660-023-0180 Mineral and Aggregate Resources (2)(b) Local governments shall apply the criteria in section (3) or (4) of this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether an aggregate resource site is significant; (c) Local governments shall follow the requirements of section (5) or (6) of this rule, whichever is applicable, in deciding whether to authorize the mining of a significant aggregate resource site, and OAR 660-023-0040 through 660-023- 2 0050 in deciding whether to authorize mining of a significant mineral resource. (5) For significant mineral and aggregate sites, local governments shall decide whether mining is pennitted." Because OAR 660-023-000 allows mining of only significant mineral or aggregate sites, and even then only under specific circumstances, the applicants cannot attain the objective of legitimizing the unpermitted excavation of 259,000 cubic yards of aggregate on the subject property by having the property included as a non-significant aggregate site. Non-significant sites are not eligible for mining under the relevant Oregon administrative rule. The subject property is privately owned and was not inundated prior to the excavation for which a permit is requested. By contrast all four sites listed in Table 5.8.2 are: 1) owned by irrigation districts; and 2) were already inundated reservoirs when listed. There is no indication that the County ever intended to add lands to the list. The subject property is completely unlike the sites listed in Table 5.8.2 and the Hearings Officer erred in determining it could be added to the list. Table 5.8.2 — Deschutes County Non -Significant Mining Mineral and Aggregate Inventory Site M i Taxtot Name Type I Quantity* Comments Whycbus 1 � Creek Irrigation ( Silt sand, Reservoir Reservoir Size is 100 I5 -I0-13-700 District— &dirt 200,000 80acres. Watson Reservoir 1. -Whychus�_... _ Creek 15-10-13-700 Irrigation sand &dirt 600,000 cy I Reservoir size is 101 District— 40 acres. Watson Reservoir 11. Whychus Creek 14-11-33-500 Irrigation Silt, sand, 100,000 cy Reservoir size is I01 E District— & dirt 12 acres McKenzie i Reservoir Whychus Creek Irrigation Sand & 250,000 to Reservoir 103 14.11.33.500 District— dirt 300,000 cY expansion size is McKenzie ; 20 acres Reservoir Fx ansion Stiutcr-i4Yti x)ci<i...iz+C.flunryC ip'i <Ginu+c lH:r �i �ie+mA The subject property is not in compliance with OAR 660-023-0180 and cannot come into compliance with that rule, which only provides for mining of significant aggregate or mineral sites. Therefore the county may not approve the application under DCC 22.20.15(A). The Hearings Officer erred by assuming the County ever intended to add to Table 5.8.2 and by adding KCDG's property to the "non-significant" inventory. Whether or not the site is added to that inventory, aggregate mining is not permitted at non-significant sites and so is not permitted at the subject property. 2. Proposed plan amendment requires Goal 5 analysis The Hearings Officer erred by finding that the proposed plan amendment need not be analyzed for compliance with Goal 5. The County's Inventories of Mineral and Aggregate Resources were adopted to address Goal 5. See Deschutes County Comprehensive Plan (DCCP) 5.8: "Goal 5 Inventory Mineral and Aggregate Resources Background: This section contains information from the 1979 Deschutes County Comprehensive Plan as revised. It lists the surface mining resources in Deschutes County. These inventories have been acknowledged by the Department of Land Conservation and Development as complying with Goal 5." Since Table 5.8.2 was adopted as part of addressing specific requirements of Goal 5, its amendment requires an ESEE analysis under OAR 660-023-250(3)(a): "OAR 660-023-250 (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5;" An ESEE analysis is also required to address the impacts to deer winter range, a listed Goal 5 resource. The property is zoned rural residential and the proposed use of original mining for non-significant resources has never been conducted. No ESEE analysis has been conducted to analyze the effects of original mining of non-significant resources on rural residential lands or winter range, because the County's acknowledged plan and code only consider inundated irrigation district reservoirs to be non-significant mining sites. Addition to Table 5.8.2 and allowing original excavation of a new site that is not already an inundated irrigation district reservoir is a misinterpretation of the County's plan and code. If the property is added, that addition triggers an ESEE analysis because it allows a new use that could be a conflicting use iI with a particular significant Goal 5 resource site on an acknowledged resource list. OAR 660- 023-250(3)(b). 3. DCC 22.20.15(A); OAR 660-023-0000, DCC 18.128.280(B)(1); DCC 18.128.280(B): DCC 18.60.030(W); DCC 18.88.040; the property is in violation of these provisions; the county may not approve any application for land use development of the subject property which is in violation of numerous applicable land use regulations The subject property is in violation of OAR 660-023-0000, which does not provide for mining of non-significant sites. The subject property is in violation of DCC 18.128.280(B)(1), because it was not necessary to surface mine for the two reservoirs. The subject property is in violation of DCC 18.128.280(B), because the applicants did not demonstrate compliance with the conditions in the code prior to beginning excavation.' The subject property is in violation of DCC 18.60.030(W), because the surface mining was not in conjunction with an irrigation district. The subject property is in violation of DCC 18.88.040, because the applicants built a recreation facility in protected deer winter range where recreation facilities are prohibited. It is not possible for the property to come into compliance with these regulations. DCC 22.20. 13 prevents the county from approving any application for land use development if the property is in violation of applicable land use regulations. "DCC 22.20.15(A): Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the county, the county shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions..." 4. Original topography prior to unlawful excavation should be restored The subject property was unlawfully excavated for a water ski lake in contravention of applicable law. Where this has occurred before, in Alfalfa, the County required that the unlawful excavation be filled back in. The County should similarly require restoration to pre -excavation conditions here. Conclusion t DCC 18.128.280(B) imposes a mandatory timing requirement that prevents the county's retroactively legitimizing past unpermitted surface mining. To obtain a conditional use permit the applicants were required to demonstrate at the time of site plan review that the conditions in DCC 18.128.280(B) were or could be met. The "time of site plan review" is before a use is commenced. DCC 18.124.030. 5 Thank you for your attention to these views. Enclosed please find a check for $3884.75, the appeal fee. LandWatch requests that the appeal fee be split with all other appellants, LandWatch also requests that the Board of Commissioners waive the requirement for a transcript. The cost of a full transcript would present a hardship and partial transcripts can be provided as needed. Best regards, ,% /7 f (,.Carol Macbetl•i' Staff Attorney Central Oregon LandWatch c►il'timiulnity Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX(541)385-1764 http://www,co.deschutes,or.us/cdd/ APPEAL APPLICATION FEE: $3,884.75 EVERY NOTICE OF APPEAL SHALL INCLUDE: A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Thomas and Dorbina Bishop, Appellant's Name (print): Truate?c of the Bishop-Eamily Trt,ist Phone: ( 503) 894-9900 Mailing Address Tomasi Salyer Martin, 121 SW Morrison St., #1850 City/State/Zip: Portland, OR 97204 Land Use Application Being Appealed File # 247 -17 -000629 -PA Property Description: Township Range 11 Section 13 Tax Lot 820, 824 and 828 Appellant's Signature: ' j �,'����' r / &4 11,, �i5t o ra _Q "r SSS EXCEPT AS PROVI D IN SECTION 22.32.024, APPELLANT SMALL PRIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 3/13 NOTICE OF APPEAL See attached letter (This page may be photocopied if additional space is needed.) TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 2 • TID is not an applicant and cannot be bound by a decision to add the KCDG property to the Comprehensive Plan's Non -Significant Mining Mineral and Aggregate Inventory; • The Non -Significant Mining Mineral and Aggregate Inventory is invalid because only significant Goal 5 mineral and aggregate resources can be surface mined, thus, adding additional property to the Non -Significant Mining Mineral and Aggregate Inventory should not be allowed; • The plan amendment cannot be approved because the Applicant failed to analyze the economic, social, environmental, and energy consequences impacts to Goal 5 inventoried resources under OAR 660-023-0250; • Under Statewide Planning Goal 2, the application is inconsistent with the Deschutes County Comprehensive Plan goals and policies, including, but not limited to: o Preservation of the rural character of the County under Section 2.6; o Section 2.4, Goal l to protect Goal 5 resources; o Section 2.5, Goal 6 to coordinate land use and water policies, including Policies 2.5.23 - 2.5.25; o Section 2.6, Goal 1 to maintain and enhance a diversity of wildlife habitat, including Policies 2.6.2 and 2.6.4; o Section 2.8, Goal I to promote energy conservation, including Policy 2.8.2; a Section 2.9, Goal 6 to maintain and improve the quality of air and land; o Section 2.10, Goal 1 to minimize adverse impacts from extraction, processing, and transporting mineral and aggregate resources, including Policy 2.10.3; o Chapter 3, Goal 1 to maintain the rural character of housing in unincorporated Deschutes County; and o Chapter 3, Section 3.4 to maintain a stable and sustainable rural economy, compatible with rural lifestyles and a healthy environment, including Policy 3.4.2 that directs the County to work with stakeholders regarding location of recreational initiatives to ensure they maintain the integrity of the natural environment. B ISHOP-LU 7\00391628.000 TC7MAS I SALYE R MARTI N 1 Jennifer M. Bragar Attorney Admitted in Oregon, Washington, and California jbragar@tomasilegal.com February 6, 2018 BY UPS OVERNIGHT DELIVERY Deschutes County Board of Commissioners c/o Anthony Raguine Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: Appeal of Hearings Officer's Decision on File Number: 247 -17 -000629 -PA Dear Chair DeBone and Commissioners: 121 SW Morrison St, Suite 1850 Portland, Oregon 97204 Tel 503-894-9900 Fax 971-544-7236 www.tomasilegal.com This office represents Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust, who live at 63382 Fawn Lane, Bend, Oregon and are members of the Tumalo Irrigation District ("TID" or "District"), as well as residents of unincorporated Deschutes County. This letter is submitted in support of the Bishops' appeal application for the above -referenced file and Hearings Officer Decision dated January 25, 2018 ("Decision"), with mailed notice sent by the County on January 26, 2018. See Exhibit 1. The application in County File No. 247 -17 -00629 - PA affects the property located at Assessor's Map 17-11-13, Tax Lots 820, 824, and 828 ("subject property"). For purposes of this letter, KC Development Group, LLC is referred to as "KCDG" or "Applicant." The Bishops request an on -the -record hearing by the Board of County Commissioners ("Board") under DCC 22.32.027 because the Hearings Officer's findings approving the plan amendment to add the subject property to the Non -Significant Mining Mineral and Aggregate Inventory are inconsistent and not cohesive with the correct findings in the Decision denying the conditional use permit for surface mining of non -Goal 5 mineral and aggregate resources (application file 247 -17 -000627 -CU), and the findings are in error and based on an incorrect application of law. The appeal should be granted to prepare a consistent decision and findings should be entered that: • KCDG must obtain a zone change to allow surface mining on private property because its surface mining on the subject property was not in conjunction with an irrigation district; BISHOP-LU7\00392053.000 TONIASI SALYER MARTIN Deschutes County Board of Commissioners Page 3 • The conditional use permit for surface mining in conjunction with an irrigation district was correctly denied in the application consolidated for review here (247 -17 -000627 -CU) and a decision to approve the plan amendment is inconsistent with the accompanying conditional use permit denial; • Adding the subject property to the Non -Significant Mining .Mineral and Aggregate Inventory, and approving any mining use for the water ski lake and other recreational lake on the subject property would violate the Wildlife Overlay's prohibition on large acreage recreational facilities; • The approval of the plan amendment would not fully resolve existing land use violations, not cure state law violations by KCDG, including, but not limited to, those related to reservoir permit requirements, water storage, water use, and surface mining in contravention to DCC Ch. 22.20.015 and DCC 1.16.010.17; and • Based on the Hearings Officer's correct denial of the conditional use permit in 247 -17 -000627 -CU, the unpermitted reservoirs should be fully remediated and reclaimed. KCDG should not be rewarded for its illegal and unpermitted surface mining activities and neither it nor TID should be allowed to potentially undertake additional mining on the subject property in the future. This is particularly the case where the record does not support the existence, location, quantity, quality, or character of any additional mineral or aggregate that could be mined, and surface mining of the subject property conflicts with the Goal 5 protection of wildlife habitat. The Bishops request a waiver of the transcript requirement due to financial hardship and for efficiency purposes under DCC 22.32.024.D. The Bishops have been fighting this unpermitted water ski lake and northerly recreational lake for four years at great financial cost. The Hearings Officer's hearing was approximately five hours and mostly focused on the separate set of applications for recreational use and planned unit development. Tn order to prepare a transcript, the Bishops would need to retain a professional transcriber to ensure quality of product at yet another significant cost. Further, very little legal argument was made in the oral arguments in relation to this application. Moreover, should the parties wish to direct the Board to portions of the hearing, or to transcribe select portions of the hearing related to this application, such direction and/or partial transcripts can be provided as attachments to written argument submitted to this Board. The Bishops reserve the right to file further written argument under DCC 22.32.027. Lastly, should the Board receive multiple appeal applications, the Bishops request that the appeal fees be split between the appealing parties. The Bishops enclose the appeal fee of $3,884.75. BISHOP-LU7\00391628.000 TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 4 Please provide a response as soon as possible regarding the requested waiver of the transcript requirement because if it is necessary, the Bishops need enough time to prepare it prior to the Board's hearing. Thank you. Sincerely, Jennifer M. Bragar JMB/dh Enclosures BISHOP-LU7\00391628.000 f Mailing Date: ti"; Lit Friday, January 26, 2018 ' Community Development Department ,�. � r' PI�hnCne QlvisiCft 8u31d1n� �+rlety pivialan F„ flVCFO17 tTt4lYfpE Sr�iCs(3tYCaAQtk �`�1'tt P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone, (541) 388-6575 Fax: (541) 985-1764 http:/JWWw,deschLite s,orgr cry NOTICE OF HEARINGS OFFICER'S DECISION FILE NUMBER: 247 -17 -000627 -CU, 629 -PA LOCATION: The subject property includes the properties described below: 1. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820 2, 63305 Palla Lane; Assessor map 17-11-13, tax lot 824 3, 19210 Klippel Road; Assessor map 17-11-13, tax lot 828 APPLICANT/ OWNER: KC Development Group, LLC SUBJECT: Application for a Conditional Use Permit for surface mining in conjunction with an irrigation district and a quasi-judicial Plan Amendment to add the subject property to Table 5.8.2 of the Deschutes County Comprehensive Plan, the "Non -Significant Mining Mineral and Aggregate Inventory". STAFF CONTACT: Anthony Raguine, anthonL.raguine0_deschuteaq , (541) 617- 4739. DOCUMENTS: Can be viewed and downloaded from: www.buildingpermits.oregon.gov and http://dial.deschutes.org APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against criteria contained in Oregon Administrative Rule 660-023; Chapters 18.04, 18.56, 18.56, 18.84, 18.88 and 18.128 in Title 18 of the Deschutes County Code (DCC), the Deschutes County Zoning Ordinance; the Deschutes County Comprehensive Plan; as well as against the procedural requirements of Title 22 of the DCC. DECISION The Hearings Officer finds the following: 1. DENIES the Conditional Use Permit for surface mining in conjunction with an irrigation district. Quati'ly Services I erftwtned i'ui'fih Pride Exhibit 1 Page 1 of 2 Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the nature, impact and suitability of the surface mining work. The reservoirs do not constitute part of Tumalo Irrigation District's (TID) existing irrigation system. TID was not involved in the envisioning, design construction or use of the reservoirs. It is not a co -applicant. TID was never officially involved in the surface mining and it is not involved now. Accordingly, the Hearings Officer concludes that the surface mining was not completed "in conjunction" with TID. The design of the reservoirs are not compatible to the site or surrounding properties based on their size, shape, and appearance. 2. APPROVES the Plan Amendment to add the subject property to Table 5.8.2 of the Deschutes County Comprehensive Plan, the "Non -Significant Mining Mineral and Aggregate Inventory." This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $2,665.00 plus 20% of the original application fee(s), and a statement raising any issue relied upon for appeal with sufficient specificity to afford the Board of County Commissioners an adequate opportunity to respond to and resolve each issue. Copies of the decision, application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost. Copies can be purchased for 25 cents per page. NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. 247 -17 -000627 -CU, 629 -PA Exhibit 1 Page 2 of 2 Community Development Department R Planning Division 8uiidlnq Safety Division Environmental Sails Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. if the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): ~Vut-\cx-,\.er� ��u�w�r�� t LL Phone: (_} Mailing Address: C) a�hr�Sy4-\ —\ Zc\ City/State/Zip: Land Use Application Being Appealed: Jq'j- 1`1-Ul7Vlu i C_��', Zy-1 �`1- DtMloyo SP a L4-1-1�1 t�oioy�_ LVv\ Property Description: Township 1:i,J2ange tit Section 1` Talc Lot6-6Z b� 1.9-L-Z-1Uy Appellant's Signature: t: 7 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) &17W Quality Services Performed roitli Pride NOTICE OF APPEAL (This page may be photocopied if additional space is needed.) ommunityr Development Department Plannkltg Division Building_ Safety Owision Environmental Sods Division P,C, Box 6005 7 NW Lafavette :venue Send. Oregon 97703-6005 Phone: (54-1 ao° 65?7 Fax,: http. ;-:;ANI,V,CieschLites.o,rg'cd APPEAL APPLICATION FEE: $5063.50 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Central Oregon LandWatch Phone: ( 541) 647-2930 Mailing Address: 50 SW Bond Street, Suite 4 City/State/Zip: 97702 Land Use Application Being Appealed: 247 -17 -Q00636 -CU AND 637 -TP Property Description: Township 17S Range 11 E Section 13j 4ax Lot 817$20, 824,825, 826, 828, 829, Appellant's Signature: 11401, 11600, 2799 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Qrfralitft gj,rj4C(,S Pt-f-/irr`rM'd With Pride NOTICE OF APPEAL attached letter. (This page may be photocopied if additional space is needed.) February 20, 2018 Deschutes County Board of Commissioners clo Peter Gutowsky Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: Appeal of Hearings Officer's Decision: 247 -17 -000636 -CU, 637 -TP Via Hand Delivery Dear Chair DeBone and Commissioners: Central Oregon LandWatch is appealing the Hearings Officer's decision (decision) for File No. 247 -17 -000636 -CU, 637 -TP. The Hearings Officer issued two recent decisions in this matter. The first decision was issued on Jan. 25th and determined there was no legal basis for approval of prior surface mining on the property. The second decision, appealed here, was issued Feb. 6th and approved a Planned Unit Development (PUD) and Tentative Plan. LandWatch respectfully urges the Board to reverse the decision and deny the application. 1. DCC 22.20.15, approval of additional land use applications must await compliance with applicable land use regulations' In a decision issued Jan. 25th the Hearings Officer determined this property is in violation of applicable land use regulations. The Hearings Officer wrote: "The Hearings Officer denies the conditional use permit at the outset because the private surface mining work is not permitted as a conditional use, or an outright permitted use in the RR -10 zone. There is no legal basis on which the application can be approved. Id., 19. 'DCC 22.20.15 (A) Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments *** (C) A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal, or through the review process of the current application, or through an acknowledgement by the alleged violator in a signed voluntary compliance agreement *** 2 Because there is no legal basis on which a surface mining application could be approved, the extensive surface mining on the property to remove 259,000 cubic yards of gravel was unlawfully conducted. The Hearings Officer erred in approving this requested land use for a PUD and Tentative Plan, because the Jan. 25th decision detennined the property is in violation of applicable regulations. "Violation" means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal, or through the review process of the current application. DCC 22.20.1.5. The Hearings Officer's Jan. 25th decision finding the property is not in compliance with surface mining regulations means the challenged Feb. 6th approval could not be issued. A permit may be approved under DCC 22.20.15(D) if the permit results in the property coming into full compliance with all relevant laws. But this PUD and Tentative Plan application not only does not bring the property into full compliance with the surface mining laws, but applies for the PUD as though the unlawful excavations could persist into the future. In order to be in compliance with the laws prohibiting surface mining on the site the applicant must return the property to its pre -surface mining condition. Another landowner in Deschutes County, KG Ranch LLC, recently constructed a water ski lake in Alfalfa. A Hearings Officer determined the water ski lake was constructed in violation of applicable law. 247 -15- 000221 -CU. Deschutes County ordered the landowner to return the excavation to its original topography within a period of several months and threatened the landowner with prosecution if he did not do so, The same should occur here. To summarize, having issued a decision on Jan. 25, 2018 determining the property is out of compliance with applicable land use regulations, the Hearings Officer lacked the authority to issue the challenged approval for other land use applications dated Feb. 6, 2018. Any approval of additional uses must await the property's being brought into compliance with current land use violations, including the resolution of eventual appeals of the Jan. 25, 2018 decision. 2. DCC 18.128.210; DCC 18.128.200; only a cluster development is consistent with applicants' phased construction Because the construction for this development has proceeded in phases, with the first phase being the unpermitted and unlawful excavation of two lakes, the development must be a cluster development. A cluster development is the only development option that allows phased construction. DCC 18.128.200 prohibits developed recreational facilities like swimming pools or motorboating lakes. 3. ORS 215.422(1)(a); DCC 18.128.210; DCC 18.128.200; cannot determine compliance with cluster development or PUD requirentents until topography is restored The Hearings Officer's consideration of this application before the existing violations are resolved prejudices opponents' rights to participate meaningfully in an appeal of the Hearings Officer's decision. ORS 215.422(1)(a). These proceedings lack coherence. For example, a Wildlife Management Plan is required that must describe the condition of the property and its current ability to support wildlife, but the disrupted topography of the site precludes a determination of what the condition will be like when the site is returned to its pre -excavation condition. Citizens cannot meaningfully participate when the application was submitted for a development based around large lakes that will not be a part of the final development, making it impossible to calculate compliance with approval criteria like open space percentages. 4. DCC 22.20.15; Request refund of appeal fee for 247 -17 -000636 -CU, 637 -TP; decision exceeded Hearings Officer's authority, therefore is void and need not be appealed This approval exceeded the Hearings Officer's authority because it was made in violation of DCC 22.20.15. Therefore the approval is void. Although LandWateh is enclosing the appeal fee, LandWatch requests a full refund. When an approval is legally void it is as though the approval had never been, so there is nothing to appeal. LandWateh should neither have to file this appeal nor pay the associated appeal fee. LandWateh also requests a. full refund of the enclosed appeal fee if the Board declines our request for review. The County may not charge appellants a fee for not conducting a review of the lawfulness of the Hearings Officer's decision, which is the only benefit LandWateh is requesting. ORS 215.422(1)(c) authorizes the County to impose fees to defray the cost of "acting upon an appeal." LandWateh does not dispute that the County may impose fees to defray the costs of acting upon an appeal if the County declines review, but disputes that the County may charge an appellant such fees. The County may charge LandWateh for a review followed by an affirmative decision or a review followed by a negative decision, but cannot charge LandWateh 4 for a refusal to conduct a review. LandWatch may only be charged a fee for direct benefits or privileges the County provides to LandWatch that are not shared by other members of society.2 Conclusion Thank you for your attention to these views. Enclosed please find a check for the $5063.50 appeal fee. LandWatch requests an on -the -record hearing. If several appeals are filed LandWatch requests that the fee be split among the appellants. Best regards. J ( l Carol Macbeth Staff Attorney Central Oregon LandWatch 2e.g Northwest Natural Gas Co. v City of Gresham, 359 Or 309, 374 Pad 829 (2016). February 20, 2018 Via Hand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner Henderson Commissioner Baney 1300 NW Wall St. 2nd Floor Bend, OR 97703 Re: Appeal of File Nos. 24747 -000639 -CU, 247 -17 -000640 -SP, and 247 -17 -000641 -LM We are writing on behalf of Tanager Development, LLC ("Tanager") to ask that you hear Tanager's appeal of a land use decision that denies Tanager's applications for land use approvals for a recreation - oriented facility requiring large acreage ("ROF"). The ROF application received strong support from project neighbors, with one exception, at the land use hearing. Tanager is not appealing the County's approval of the planned development it proposed adjoin the ROF. The appealed decision relies heavily on an earlier decision that denies surface mining in conjunction with an irrigation district for the same property and that removes the County's "on-site construction" exception from the definition of surface mining that is a part of the County's code. Tanager's affiliated entity, KC Development Group, LLC, has appealed the earlier decision. The primary legal issues challenged in each appeal are based on new code interpretations. Review by the Board is needed to determine whether these new interpretations or the County's prior interpretations will be followed in other pending land use cases. Additionally, the hearings officer applied criteria requiring a "harmonious" site plan design and "suitability" and "compatibility" incorrectly. Despite finding that the ROF's impacts are negligible or insignificant and that the use proposed will be compatible with existing and projected uses on surrounding properties with implementation of the Landscape Plan and wildlife mitigation measures offered by Tanager, the application was denied because the South pond does not look natural. A natural appearance, however, is not required by the County's code. Tanager worked diligently to follow the guidance provided in earlier decisions on the subject property to design a thoughtful, attractive, and responsible facility. Tanager respectfully requests that you hear the appeal de novo. Tanager has agreed to waive the 150 -day clock until June 30, 2018, and will work with staff to extend the clock if needed. Sincerely, J. Kentrc {i/Kyarofl OSB # 14' Attorn;for KC Development G r` 3550_ roup, i,l,f' Liz Fanclicr, ONif # 812202 Attorney for KC Development Group, LLC NOTICE OF APPEAL Tanager Development, LLC ("Tanager") hereby appeals the denial of applications seeking approval of a recreation -oriented facility ("ROF") in File Nos. 247 -17 -000639 -CU, 247 -17- 000640 -SP, and 247 -17 -0000641 -LM in the "Decision of the Deschutes County Hearings Officer" issued by hearings officer Stephanie Hicks dated February 6, 2018 and mailed February 7, 2018. This decision is referred to herein as the "Hicks ROF Decision" to differentiate it from prior decisions regarding the subject property. Tanager is the applicant and a party in 247 -17- 000639 -CU, 247 -17 -000640 -SP, and 247 -17 -0000641 -LM. Tanager is not appealing the conditional use and tentative plan approvals granted by the Hicks ROF decision for File Nos. 247 -17 -000636 -CU and 247 -17 -000637 -TP that approved a tentative plan and planned development conditional use permit for the subject property. A copy of the cover letter to this Notice of Appeal is attached as Exhibit A. The Board of Commissioners ("Board") should review and reverse the Hicks ROF Decision because the decision contains legal rulings that are clearly erroneous that will create extreme hardship for a large number of property owners. Furthermore, it is likely a review by the Oregon Land Use Board of Appeals ("LUBA") will not ,address and correct these errors because LUBA affirms denials if there is a single basis for denial. Only the Board can correct the erroneous interpretations and prevent uncertainty and harm to County property owners in pending and future land use applications. The Hicks ROF Decision, like the prior 2018 Hicks decision, removes the "on-site construction" exemption from surface mining from the County's code. The "on-site construction" exemption is regularly relied upon throughout the County during permitting for new uses. The Board should also review the 2018 Hicks ROF Decision to provide Tanager a complete review on the merits of its conditional use permit application, a review it was entitled to receive by 1)('C' 22.28.040. The hewing officer denied Tanager such a review by erroneously applying principles of issue and claun preclusion to this application as follows: "Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the proposed ROF use of the reservoirs." Hicks ROF Decision. n 59 The following background is relevant: KCDG, the owner of the subject property, graded two pre-existing mining pits to establish two large, lined ponds on its property in 2014 after being told by County staff that no County permits were required. Permits were not required because the work was believed to be exempted from surface mining as on-site construction but no land use decision was issued to that effect. The primary purpose of the ponds is to be used by KCDG for aesthetic and recreational uses, including motorized boating activity on the southerly pond. KCDG is seeking a water rights permit for this use. KCDG would also like to allow Tumalo Irrigation District ("TID") to use the ponds for water storage and reregulation purposes. Another purpose is to provide a source of water for fighting fires. The ponds were the primary source to fight the Two Bulls Fire in 2014. Page 1 of 5 - Notice of Appeal (Tanager) In 2014, a decision by hearings officer Karen Green, the "2014 Green decision," found that the primary purpose of the pond excavation work was "other on-site construction." Ms. Green determined that although the establishment of the ponds would normally be exempted from the definition of "surface mining" and land permitting as "on-site construction," a more specific provision of the code required conditional use approval of surface mining "in conjunction with" an irrigation district, in order for TID to use the ponds as intended. Ms. Green also determined that KCDG required conditional use approval of a "recreation -oriented facility requiring large acreage" to allow water skiing. In spring of 2015, the Board affirmed the 2014 Green decision. Following the Board's decision, KCDG and TID filed the conditional use applications. In early 2016, hearings officer Green denied the two conditional use permit applications. Ms. Green determined she could not issue the surface mining/reservoir permit for use of the ponds by TID unless KCDG or TID obtained approval of a plan amendment to add the subject property to the non-significant Goal 5 surface mining inventory list. The Board declined to hear appeals of this decision. In June of 2016, KCDG and TID suspended the proposed uses pending final land use approval. It worked diligently to develop a complete plan of development that would address the issues that resulted in denial of the 2015 applications. It also applied for approval of the plan amendment needed to allow TID to use the ponds for water storage. In 2017, KCDG and Tanager filed new applications as allowed by DCC 22.28.040. The applications requested approval of the conditional use permits required by the Board's 2015 decision, a planned development that provides buffering between the South Pond and neighboring property owners and the plan amendment required by the 2016 Green decision. The applications included a more robust wildlife plan and a landscaping plan requested by Ms. Green. The 2018 Hicks decision of 247 -17 -000627 -CU and 247 -17 -000629 -PA (the "2018 Hicks decision") followed. It denied approval of surface mining in conjunction with an irrigation district (TID) and approved adding the KCDG property to the comprehensive plan inventory for non-significant mineral and aggregate resource sites. In so doing, the 2018 Hicks decision reversed the Board's 2015 determination that the KCDG ponds involved surface mining in conjunction with an irrigation district. The Board should hear this appeal, reverse the 2018 Hicks Decision and approve the conditional use application for the following reasons: The Hearings Officer found that the conditional use criteria applicable to the ROF were met with the exception of DCC 18.128.015(A)(3) and the findings regarding compliance with DCC 18.128.015(A)(3) are clearly wrong as explained in Assignment of Error 2, below. The key findings that show that approval is merited are: (1) the KCDG property is suitable for the ROF use based on its site, design and operating characteristics and transportation access; and (b) the ROF will be compatible with existing and projected uses on surrounding properties with the implementation of mitigation measures offered by the applicant; and (c) all potential impacts of the ROF use (sound, visual, and traffic) will have insignificant or no impact on surrounding properties. Page 2 of 5 - Notice of Appeal ('Tanager) 2. The findings regarding DCC 18.128.015(A)(3) are erroneous for the following reasons: A. DCC 18.128.015(A)(3) asks whether the KCDG property is suitable for the ROF use based on its natural and physical features. That question is not answered. Instead, the decision denies the application because the ROF does not look like the natural and physical features of the KCDG property. This is not a permissible basis for denial. B. The findings misconstrue the conditional use criteria to require that the ROF be harmonious with the natural and physical features of the site before construction and err in denying approval of the ROF because some of its slopes are not "harmonious." The code, however, only requires that the natural and physical features of the site not make the property unsuitable for the use proposed. Requiring "harmoniousness" as an approval criterion, therefore, is a legal error. Further, the site before construction was a large hole in the ground of uneven terrain that had been a surface mine. Such a site is clearly suitable for the construction of a pond. C. The findings impermissibly apply conditional use approval criteria to impose a Goal 5 resource protection program. Natural feature protections are to be imposed by the County's program to meet Goal 5, the WA zone, not by its conditional use approval criteria. Further, "natural resource" is a defined term in the Code and the hearings officer application is inconsistent with this definition and its application to the criteria. D. Assuming that subsection (A)(3)'s requirement that the site be suitable for the ROF based on the natural and physical features of the site is read to require the protection of wildlife and vegetation, Tanager's offer to revegetate disturbed areas of the South Pond and to implement a Wildlife Habitat Management Plan provides reasonable and effective protections that mitigate impacts to the natural and physical features of the site caused by deepening a lightly revegetated former surface mine pit. The decision discusses these measures but fails to assess whether thev achieve compliance with subsection (A)(3). E. It is clear the site's physical characteristics due to its prior history of surface mining make it suitable for a ROF. The Hicks ROF decision misconstrues the site plan "relates harmoniously" criterion of DCC 18.124.060 (A) as a conditional use criterion rather than a site plan criterion and in a way that is inconsistent with "purpose" statement in the code which is to assure that a use is sited on a property to "promote functional, safe, innovative and attractive site development." DCC 18.124.010. Site plan criteria apply to uses permitted outright and conditionally. As such, its requirements are not designed to determine whether the use planned for a site should be allowed. Site plan criteria prescribe how uses will be developed on the land. The code specifically requires that the "development" — not the Page 3 of 5 - Notice of Appeal (Tanager) use — "relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features including views and topographical features." 4. The Hicks ROF decision should have determined that the "relates harmoniously" criterion of DCC 18.124.060(A) are met by the proposed 2017 site plan. As written, the "relate harmoniously" standard is met if visual impacts are minimized and natural features are preserved. Given the fact that the ROF is not visible from existing development in the area, its design and location have clearly minimized visual impacts by eliminating them. Further, given the fact the site is a reclaimed surface mine, it fully complies with DCC 18.124.060 (A) because it did not remove or alter natural features. Approval is also consistent with the purpose of the County's site plan criteria to make an innovative use of the site. DCC 18.124.010. The hearings officer also fails to review the site as proposed and only reviews it prior to development, instead of as a finished product with proposed landscaping and additional mitigation measures. 4. The Hicks ROF Decision errs by relying on DCC 18.124.060 to deny the conditional use application because the scale, intensity and duration of the ROF was found not to be "harmonious" with existing development in the area. DCC 18.124.060 does not impose this legal requirement. The finding is also inconsistent with the findings which review the use at DCC 18.128.015(A)(1) where the hearings officer determines that the proposed operating characters are suitable to the site. It, therefore, is not an appropriate basis for denial of the conditional use permit. The Hearings Officer erred in relying on the 2018 Hicks Decision to find that the KCDG ponds were not legally created, that private surface mining is prohibited by the RR -10 zone, that the on-site construction exception of the County definition of "surface mining" is preempted and to find that issue and claim preclusion apply to the review of the conditional use permit for surface mining. A copy of KCDG's appeal of the 2018 Hicks decision is marked Exhibit B, attached hereto and incorporated by reference herein. The issues listed in that appeal are also issues in this appeal. The Board's 2015 decision and the 2016 Green decision both recognize that surface mining, but for TID's intended use, is on-site construction allowed outright by the County's code. The Hicks ROF decision violates DCC 22.28.040, the law that allows KCDG to refile a denied land use application and to obtain a new decision from the county. The 2018 Hicks decision erroneously applied the legal theories of issue and claim, preclusion to decide the case. This is clearly erroneous and is not justified by findings in the appealed decision. Lawrence v. Clackamas County, 180 Or App 495, 43 Pad 1192 rev den 334 Or 327, 52 Pad 435 (2002)(no claim preclusion allowed if local code allows reapplication); Campbell v. Werner, 67 Or LUBA 53, footnote 4 (2013)(describing its ruling in Lawrence that it is not appropriate to apply issue and claim preclusion in land use proceedings). It was also legal error to apply issue and claim preclusion to Tanager as it was not a party to the prior land use proceedings. Page 4 of 5 - Notice of Appeal (Tanager) A complete list of the issues raised by Tanager is provided as Exhibit C of this Notice of Appeal. This list is provided for the primary purpose of preserving issues for review by LUBA if the Board declines review. The applicant requests that its appeal be heard de novo. A de novo review is necessary to allow the Board to fully and properly evaluate the significant policy issues identified above. De novo review will allow the Board to ask questions and seek additional evidence on these and other issues it determines are relevant. The applicant requests that the Board waive the requirement that it file a transcript as allowed by DCC 22.32.024(D). This request is made because the appellant is requesting a de novo hearing and a video recording of the hearing below is available to the Board and parties. The applicant agrees to toll the running of the 150 -day clock until June 30, 2018. The applicant will also consider granting additional extensions if needed to give the Board sufficient time to fully consider and resolve the issues involved in this case. If the Board rules in favor of the applicant on appeal, the applicant is willing to prepare a draft decision for consideration by the Board to reduce the impact of this appeal on County staff. Respectfully submitted this,�6 day of February, 2018. Ken Kalzaroff, OSB 4 143550 Attorney for Tanager 1. —S_._. Liz Fancher, OSI -i812202 Attorney for Tanager Page 5 of 5 - Notice of Appeal (Tanager) EXHIBIT A — Notice of Appeal (Tanager) February 20, 2018 Via Nand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner Henderson Commissioner Baney 1300 NW Wall St. 2nd Floor Bend, OR 97703 Re: Appeal of File Nos. 247 -17 -000639 -CU, 247 -17 -000640 -SP, and 247 -17 -0000641 -LM We are writing on behalf of Tanager Development Group, LLC ("Tanager") to ask that you hear Tanager's appeal of a land use decision that denies Tanager's applications for land use approvals for a recreation -oriented facility requiring large acreage ("ROP). The ROF application received strong support from project neighbors, with one exception, at the land use hearing. Tanager is not appealing the County's approval of the planned development it proposed adjoin the ROF. The appealed decision relies heavily on an earlier decision that denies surface mining in conjunction with an irrigation district for the same property and that removes the County's "on-site construction" exception from the definition of surface mining that is a part of the County's code. Tanager's affiliated entity, KC Development Group, LLC, has appealed the earlier decision. The primary legal issues challenged in each appeal are based on new code interpretations. Review by the Board is needed to determine whether these new interpretations or the County's prior interpretations will be followed in other pending land use cases. Additionally, the hearings officer applied criteria requiring a "harmonious" site plan design and "suitability" and "compatibility" incorrectly. Despite finding that the ROF's impacts are negligible or insignificant and that the use proposed will be compatible with existing and projected uses on surrounding properties with implementation of the Landscape Plan and wildlife mitigation measures offered by Tanager, the application was denied because the South pond does not look natural. A natural appearance, however, is not required by the County's code. Tanager worked diligently to follow the guidance provided in earlier decisions on the subject property to design a thoughtful, attractive, and responsible facility. Tanager respectfully requests that you hear the ,appeal de novo. Tanager has agreed to waive the 150 -day clock until June 30, 2018, and will work with staff to extend the clock if needed. Sincerely, 4 J. Kem,}1��� i Katzaraff, OSB # 143550 Liz Fan -Tier, OS # 812202 Aitorr{oy for KC Development Csroup"LIN Attorney for �C Development Group, LLC Exhibit B - Notice of Appeal (Tanager) February 7, 2018 Via Hand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner Henderson Commissioner Baney 1300 NW Wall St. 2nd Floor Bend, OR 97703 Re: Appeal of file no. 247 -17 -000627 -CU Dear Commissioners, We represent KC Development Group, LLC ("KCDG"). On January 25, 2018, Hearings Officer Hicks issued a decision denying KCDG's application for conditional use approval of surface mining in conjunction with an irrigation district, file number 247 -17 -000627 -CU. For the reasons set forth in the attached Notice of Appeal, KCDG appeals that denial. KCDG has been before the Board of County Commissioners ("BOCC") before. In April of 2015, the BOCC determined that additional permitting was necessary for KCDG's and the Tumalo Irrigation District's planned uses for the property. The current decision for which KCDG seeks de novo review, includes legal errors that are likely to be reversed before the land use board of appeals ("LUBA") before a decision on the merits of the application may be reached. We ask that the BOCC hear this appeal and address both the legal errors and merits of the application. This will provide a fair review of the proposed application to applicant and the broader public. Waiting for a remand from LUBA risks negative code interpretations as determined by LUBA, and delays further review on the merits of the application. We respectfully ask that the BOCC take action now and accept the appeal, de novo. Applicant has agreed to waive the 150 -day clock until June 30, 2018, and shall work with staff to make any other accommodations as is necessary. Sincerely, r _ J. Kenneth Katzaroff, OSB # 143550`. Liz Fancher, OSB # 812202 Attorney for KC Development Group, LLC Attorney for KC Development Group, LLC Exhibit B - Notice of Appeal (Tanager) NOTICE OF APPEAL KC Development Group, LLC ("KCDG"), hereby appeals the denial of application 247 -17- 000627 -CU in the "Decision of the Deschutes County Hearings Officer" entered in File Numbers 247 -17 -000627 -CU and 247 -17 -000629 -PA by hearings officer Stephanie Hicks dated January 25, 2018 and mailed January 26, 2018. This decision is referred to herein as the "2018 Hicks decision" to differentiate it from prior decisions regarding the subject property. KCDG is the applicant and a party in 247 -17 -000627 -CU. KCDG only appeals the denial of File No. 247 -17- 000627 -CU and not the approval of File No. 247 -17 -000629 -PA. KCDG has attached it's cover letter to this Notice of Appeal as Exhibit A. The Board of Commissioners ("Board") should review and reverse the 2018 Hicks decision because it removes the "on-site construction" exemption from surface mining from the County's code. The "on-site construction" exemption is regularly relied upon throughout the County during permitting for new uses. The Board should also review the decision to provide KCDG a review on the merits of its conditional use permit application, a review it was entitled to receive by DCC 22.28.040. The heating officer denied KCW such a review by erroneously applying principles of issue and claim preclusion to this application as follows: "Res judicata and collateral estoppel bar the applicant from relitigating the issue of whether a conditional use permit may be issued to it under the factual circumstances of the nature, impact and suitability of the surface mine work." 2018 Hicks Decision, p. 15. The following background is relevant: KCDG graded two pre-existing mining pits to establish two large, lined ponds on its property in 2014 after being told by County staff that no County permits were required. Permits were not required because the work was believed to be exempted from surface mining as on-site construction but no land use decision was issued to that effect. The primary purpose of the ponds is to be used by KCDG for aesthetic and recreational uses, including motorized boating activity on the southerly pond. KCDG is seeking a water rights permit for this use. KCDG would also like to allow Turnalo Irrigation District ("TID") to use the ponds for water storage and reregulation purposes. Another purpose is to provide a source of water for fighting fires. The ponds were the primary source to fight the Two Bulls Fire in 2014. In 2014, a decision by hearings officer Karen Green, the "2014 Green decision," found that the primary purpose of the pond excavation work was "other on-site construction." Ms. Green determined that although the establishment of the ponds would normally be exempted from the definition of "surface mining" and land permitting as "on-site construction," a more specific provision of the code required conditional use approval of surface mining "in conjunction with" an irrigation district, in order for TID to use the ponds as intended. Ms. Green also determined that KCDG required conditional use approval of a "recreation -oriented facility requiring large acreage" to allow water skiing. In spring of 2015, the Board affirmed the 2014 Green decision. Following the Board's decision, KCDG and TID filed the conditional use applications. In early 2016, hearings officer Green denied the two conditional use permit applications. Ms. Green Page 1 of 4 Exhibit B - Notice ofAppeaf (Tanager) determined she could not issue the surface mining/reservoir permit for use of the ponds by TID unless KCDG or TID obtained approval of a plan amendment to add the subject property to the non-significant Goal 5 surface .mining inventory list. The Board declined to hear appeals of this decision. In June of 2016, KCDG and TID suspended the proposed uses pending final land use approval, It worked diligently to develop a complete plan of development that would address the issues that resulted in denial of the 2015 applications. It also applied for approval of the plan amendment needed to allow TID to use the ponds for water storage. In 2017, KCDG and associated Tanager Development, LLC, filed new applications as allowed by DCC 22.28.040. The applications requested approval of the conditional use permits required by the Board's 2015 decision, a planned development that provides buffering between the South Pond and neighboring property owners and the plan amendment required by the 2016 Green decision. The applications included a more robust wildlife plan and a landscaping plan requested by Ms. Green. The 2018 Hicks decision followed. The 2018 Hicks decision reversed the Board's 2015 determination that the KCDG ponds involved surface mining in conjunction with an irrigation district. The decision also The Board should hear this appeal, reverse the 2018 Hicks Decision and approve the conditional use application for the following reasons: 1. The 2018 Hicks Decision finds that the KCDG ponds were not constructed in conjunction with TID. As a result, conditional use permit approval of surface mining is not required because it was on-site construction allowed outright by the County code. The Board's 2015 decision and the 2016 Green decision both recognize that surface mining, but for TID's intended use, is on-site construction allowed outright by the County's code. 1 KCDG did not ask the county to determine whether surface mining not in conjunction with an irrigation district is allowed in the RR -10 zone and resolution of the issue is not necessary to determine whether to approve the conditional use application for surface mining in conjunction with an irrigation district. The decision's erroneous legal determination that surface mining is not allowed in the RR -10 zone, therefore, is nonbinding dicta and should be stricken from the decision. 1 The 2018 Hicks decision erroneously applied the definition of "surface mining" provided by ORS 517.750 rather than the definition provided by the County's acknowledged land use rules based on the erroneous conclusion that ORS 517.780 preempts the County's acknowledged land use regulations. ORS 517.750, by its terms, applies only to the provisions of the State's reclamation law (ORS 517.702 to 517.989); not to land use reviews by Deschutes County. 4. The 2018 Hicks decision erred in finding that ORS 517.780 preempts the County's definition of "surface mining." This decision conflicts with all prior County decisions regarding the ponds and the 2016 KG Ranch decision issued by Hearings Officer Hicks Page 2 of 4 Exhibit B - Notice of Appeal (Tanager) in File No. 247 -15 -000221 -CU. ORS 517.780 does not define surface mining and it does not say that definitions of ORS 517.750 preempt definitions of the same terms in County land use laws. ORS 517.780 gives DOCTAMI, with certain exceptions, the exclusive right to issue operating permits and to approve mine reclamation plans for surface mines, It does not strip local governments of the right to adopt land use rules regarding surface mining, 5. If the County agrees with the preemption argu.naent in the 201811icks decision, the only consistent reading of ORS 517,780 is that DOGAMI has sole authority to regulate the surface mining on the KCDG property. The County, thereli>re, should defer to DOGAMI's resolution of the matter. DOGAMI has closed its file without requiring a permit for excavation of the KCDG ponds. 6. The 2018 Hicks decision violates DCC 22,28.040. This law gives KCDG the right: to refile a denied land use application and to obtain a new decision frolxa the county. The 2018 Hicks decision found that all issues determined by the 2016 Grecti decision, other than the issue whether mining occurred in conjunction with at) irrigation district, are binding on KC'DG due to the legal theories of issue and claim preclusion. This is a clearly erroneous decision. The Oregon Court of Appeals has held that claim preclusion does not ripply where a county code allows all applicant to refile a denied application, Issue preclusion does not apply unless the issue presented is identical and number of additional conditions are present that merit application of the rule. Lawrence v. (.aackamas County, 180 Or App 495, 43 P3d 119'2 rev den 334 Or 327, 52 Pad 435 (2002). LUBA has also ruled that land use proceedings a2•e not tl-Ie type of proeeeding to which courts give preclusive effect, at least against an applicant seeking approval of a previously denied application. Campbell v. Werner, 67 Or LUBA 53, footnote 4 (2013)(describing its ruling in Lawrence). 7. The hearings officer erred by failing to address legal arguments the applicant presented that addressed the issue and claim preclusion issues discussed in paragraph 6, above. The case law relied on by the hearings officer is not "on point" as it does not address the role of either rule in the context of tlae administrative review process currently used to review land use decisions. The 2018 Hicks decision misconstrued the applicable law, DCC 18.128.015 (A) and (B), to impose a legal requirement not found in the law — that structures associated with conditional uses be or appear "natural." It is impractical and impossible for any building or structure to meet such a requirement. The County has never required that each new improvement, use, or development be "natural looking," only that sufficient mitigation measures exist so that the use will be compatible with existing and projected uses on surrounding properties. I-Icre, the efficacy of the offered mitigation measures was not even analyzed. The decision does, however, say that: if it is reversed on appeal, that the mitigation measures should be required to be followed as a condition of approval. This implies that the offered mitigation is more than sufficient to meet the compatibility criteria, Page 3 of 4 Exhibit B - Notice of Appeal (Tanager) A complete list of the issues raised by KCDG is provided as Exhibit B of this Notice of Appeal. This list is provided for the primary purpose of preserving issues for review by LUBA if the Board declines review. The applicant requests that its appeal be heard de novo. A de novo review is necessary to allow the Board to fully and properly evaluate the significant policy issues identified above. De novo review will allow the Board to ask questions and seek additional evidence on these and other issues it determines are relevant. The applicant requests that the Board waive the requirement that it file a transcript as allowed by DCC 22.32.024(D). This request is made because the appellant is requesting a de novo hearing and a video recording of the hearing below is available to the Board and parties. The applicant agrees to toll the running of the 150 -day clock until June 30, 2018. The applicant will also consider granting additional extensions if needed to give the Board sufficient time to My consider and resolve the issues involved in this case. If the Board rules in favor of the applicant on appeal, the applicant is willing to prepare a draft decision for consideration by the Board to reduce the impact of this appeal on County staff. Respectfully submitted this 7th day of February, 2018., Keri Katzaroff, OSB # 143 Attorney for KC Development Group, 1,1,, '. Liz Fancher, OS tr 812202 Attorney for KC Development Group, LLC Page 4 of 4 Exhibit B - Notice of Appeal (Tana er) EXHMIT A — Notice of appeal (KCDG) February 7, 2018 Via Hand Delivery to Community Development Department Chair Commissioner DeBone Vice -Chair Commissioner Henderson Commissioner Bailey 1300 NW Wall St. 2nd Floor Bend, OR 97703 Re: Appeal of file no. 247 -17 -000627 -CU Dear Commissioners, We represent KC Development Group, LLC ("KCDG"). On January 25, 2018, Hearings Officer Hicks issued a decision denying KCDG's application for conditional use approval of surface mining in conjunction with an irrigation district, file number 247 -17 -000627 -CU. For the reasons set forth in the attached Notice of Appeal, KCDG appeals that denial. KCDG has been before the Board of County Commissioners ("BOCC") before. In April of 2015, the BOCC determined that additional permitting was necessary for KCDG's and the Tumalo Irrigation District's planned uses for the property. The current decision for which KCDG seeks de novo review, includes legal errors that are likely to be reversed before the land use board of appeals ("LUBA") before a decision on the merits of the application may be reached. We ask that the BOCC hear this appeal and address both the legal errors and merits of the application. This will provide a fair review of the proposed application to applicant and the broader public. Waiting for a remand from LUBA risks negative code interpretations as determined by LUBA, and delays further review on the merits of the application. We respectfully ask that the BOCC take action now and accept the appeal, de novo. Applicant has agreed to waive the 150 -day clock until June 30, 2018, and shall work with staff to make any other accommodations as is necessary. Sincerely, t ,s J. 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P, CD Sp ����� n Q �� w Y ��� o w n a• w �' n o o r o tC lzrrr w Cr + C� n C1 n fl rn O p M wa�cco E n , a oa ID t7 vC9, © Irl rL o co 08 CD ti CD n o :; w CCD m CD CD a FL H w n a co *. rho `0 a C,:? ID Ct w p' O (D 0 6'a r O m c9 o o. °CL baaCD co m � CD(D a�� p n w � a• � coi � n � �• � v � a. ¢ ° w p N yEro cu• 0�4 R. �'• coa G' n rn c' w gyri A.. A r .w•r !Q=p W O N wi ��� O coo ca �a ^° O O r w a• w CD p t~o F. p E.RD =CDCD b W ° C° A ° iS co �• p�coo' a jun V w (wD A 8 Cf n �' Y O y co (9 _ a ° CNl� o tv C_ ° O go CfjQ D �� zya Heb CD Community Development Department Planning Division Building Safety Division Environmental Solis Division P.C. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co,deschutes.or.us/cdd/ APPEAL APPLICATION FEE: $5,063.50 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form most include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. ant is igie to file an apeal Staff cannot whean appeal valid.appellant a Appellants should seek their) own leglall advice concerning those D Section issues. 22.32.010) or whetherpp Thomas and Dorbina Bishop, 503 894-9900 Appellant's Name (print): _ Trustees oft a gjsJlnn Family Tr�_��t _Phone: ( } Mailing Address: Tomasi Salyer Martin, 121 SW Morrison St., #1850 City/State/Zip: Portland, OR 97204 Land Use Application Being Appealed: File # 247 -17 -000636 -CU and File # 247 -17 -000637 -TP 11 Section 13 & 14Tax Lot 817, 825, 829, 11401, 11600, 601 Property Description: Township 17 Range 820, 824, 826 828 and 2700.41 Appellant's Signature: ` "i+t �,,�� Try 51-_ EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PR�VID A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 3113 NOTICE OF APPEAL See attached letter (This page may be photocopied if additional space is needed,) V X 1 OMANI SALYER MARTIN , Jennifer M. Bragar Attorney Admitted in Oregon, Washington, and California jbragar@tomasilegal.com February 19, 2018 BY UPS NEXT DAY AIR Deschutes County Board of Commissioners c/o Anthony Raguine Deschutes County Community Development Department 1 ] 7 NW Lafayette Avenue Bend, OR 97708-6005 Re: Appeal of Hearings Officer's Decision on File Numbers: 247 -17 -000636 -CU and 247 -17 -000637 -TP Dear Chair DeBone and Commissioners: 121 SW Morrison St, Suite 1850 Portland, Oregon 97204 Tel 503-894-9900 Fax 971-544-7236 www,tomasilegal.com This office represents Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust ("Bishops"), who live at 63382 Fawn Lane, Bend, Oregon and who are members of the Tumalo Irrigation District (TID1'or "District"), as well as residents of unincorporated Deschutes County. This letter is submitted in support of the Bishops' appeal application for the above -referenced files and Hearings Officer Decision dated February 6, 2018 ("Decision"), with mailed notice sent by the County on February 7, 2018. See Exhibit 1. The applications in County File Nos. 247- 17 -000636 -CU ("PUD") and 247 -17 -000637 -TP ("Tentative Plan") affect the property located at Assessor's Maps 17-11-13 and 17-11-14, Tax Lots 817, 825, 829, 11401, 11600, 601, 820, 824, 826, 828, and 2700 ("subject property"),' For purposes of this letter, Tanager Development, LLC is referred to as "TAN" and KC Development Group, LLC is referred to as "KCDG." Together, TAN and KCDG are referred to as "Developers." The Bishops request an on -the -record hearing by the Board of County Commissioners ("Board") under DCC 22.32.027 because the Hearings Officer's findings and approval of the PUD and Tentative Plan are inconsistent and not cohesive with the correct findings in the Decision denying the conditional use permit for the large acreage recreational facilities (water ski lake and northerly lake, together "recreational facilities" or "the lakes") in Application File Nos. 247 -17 -000639 -CU, 247 -17 -000640 -SP, and 247 -17 -000641 -LM, and the findings and approvals are in error and based on an incorrect application of law. The PUD and Tentative Plan should not have been approved under DCC 22.20.015 because these approvals do not bring the property into compliance with the land use regulations ' The Hearings Officer's decision seems to confuse the file numbers. The Bishops refer to the file numbers as assigned on the Developers application forms attached hereto as Exhibit 2. BISHOP-LU7\00396809.003 TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 2 unless the lakes and all infrastructure to create them, including the westerly road, are removed and the site is fully remediated because the large acreage recreational facilities were denied .2 At such time as full remediation is complete, a PUD could be properly designed to utilize some of the area currently covered by the unpermitted recreational facility structures, and depending on the application materials, findings could be made under DCC 18.124.060 and 18.128.015. Even if the PUD and Tentative Plan applications could be processed under DCC 22.20.015, which the Bishops still contend was in error, the applications do not meet the approval criteria. The appeal should be granted to prepare a consistent decision and findings should be entered that: • The applications cannot be approved under DCC 22.20.015 because they do not fully resolve the unpermitted surface mining and construction of large acreage recreational facilities. • As the Bishops have consistently argued, the proposal is really KCDG's solely constructed cluster development subject to DCC 18.128.200, the only development option that allows phased construction — the first phase of which was constructed when the water ski and northerly recreational lake structures were excavated and built approximately four years ago. The denial of the recreational facilities' conditional use permit means that the cluster development must be denied as well. Further, DCC 18.128.200.13 prohibits the construction of large acreage, intense water ski lakes and large acreage recreational facilities. In addition, improperly processing the application as a PUD avoids the environmental, economic, and social impact of the proposed development under DCC 18.128.200.A. Although the Developers claim they have applied for a PUD, the difficulty of that approach is well -evidenced by the Hearings Officer decision that fails to rectify the PUD application materials to remove reference to the recreational facilities now that the surface mining and large acreage recreational facilities have once again been denied. o Reliance on the Applicant's Wildlife Habitat Management Plan ("WHMP") is misplaced because the analysis started from the perspective that the lakes were already constructed (see references in the Decision to the WHMP, including, but not limited to findings under DCC 18.128.210.B.8, 17.16.100.A, and the conditions of approval that reference the WHMP). However, this cluster development with the recreational facilities as the focal point must be analyzed against impacts from the construction of the lakes. This fundamental mistake in Despite the Hearings Officer's finding on page 12, note 7 of the Decision, the westerly road was not constructed as part of, or under the authority of TU -14-8. Permit TU -14-8 was limited to rock crushing on tax lot 824, a 15.31 acre property for a 30 -day period. It did not permit excavation, grading, and installation of the westerly road that does not cross over or make any use of tax lot 824, but was necessary to accomplish the still unpermitted surface mining on the KCDG property. The bulk of KCDG's excavation also occurred outside the time period authorized for rock crushing. As with construction of the westerly road, large portions of several of the lots included in the PUD application were disturbed and used for surface mining. Thus, these parcels that have been disturbed by the surface mining must be frilly remediated prior to the County reviewing the PUD and Tentative Plan applications. BISHOP -1,U7100341628.000 TOMASl SALYER MARTIN Deschutes County Board of Commissioners Page 3 analysis further supports not approving a cluster development or PUD until the lakes are fully remediated. The full development must be considered, including the full plan described by the Developers to build a development that will include at least 19 houses – not just the first 10 proposed here. This proposal therefore violates state law under OAR 660-004- 0040(7)(e)(A) that limits planned unit developments to 10 dwelling units. Further, based on the proposal for a total of at least 19 houses, the proposed open space, as that term is defined under DCC 18.04.030, will not meet the 80% requirement under DCC 18.88.050.D for the full PUD. Ultimately, the recreational facilities will not be allowed to count towards the open space requirement. Significantly, this is why the County's Code requires Master Plan submittal under DCC 17.16.050. As the Bishops have argued, the PUD must include the full development described in the proposed Covenants, Conditions and Restrictions ("CC&Rs") and Easement and Maintenance Agreement ("EMA"), including potential members from Klippel Acres. This expanded area would then also require further review and analysis under OAR 660- 004-0040(7)(e)(A), DCC 18.88.050.D and 17.16.050. Under DCC 18.128.015.A, the PUD is incompatible with the character of the surrounding property based on its site, design, and operational characteristics. The access points for the western lots are incompatible with the existing neighborhood. Both the westerly road and the proposed ingress/egress across the Hammock property would be unnecessary if the PUD were designed to utilize existing access along Klippel Road and Palla Lane, which existed prior to August 5, 1992. Further, the current design of the PUD is incompatible with clustering of units to avoid fragmenting wildlife habitat in the protected Tumalo Deer Winter Range. Even if the County considers the proposal as a PUD, the County cannot make a finding of consistency with the comprehensive plan under DCC 18.128.21.0 either strictly as housing, or as proposed by the Developersa cluster development with the recreational facilities as the focal point—when the following sections of the comprehensive plan are considered: o Preservation of the rural character of the County under Section 2.6; o Section 2.4, Goal 1, to protect Goal 5 resources; o Section 2.5, Goal 6, to coordinate land use and water policies, including Policies 2.5.23-2.5.25; o Section 2.6, Goal 1, to maintain and enhance a diversity of wildlife habitat, including Policies 2.6.2 and 2.6.4; o Section 2.8, Goal 1, to promote energy conservation, including Policy 2.8.2; o Section 2.9, Goal 6, to maintain and improve the quality of air and land; BISHOP -1,U7\00391628.000 TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 4 o Section 2.1.0, Goal 1, to minimize adverse impacts from extraction, processing, and transporting mineral and aggregate resources, including Policy 2.10.3; o Chapter 3, Goal 1, to maintain the rural character of housing in unincorporated Deschutes County; and o Chapter 3, Section 3.4, to maintain a stable and sustainable rural economy, compatible with rural lifestyles and a healthy environment, including Policy 3.4.2 that directs the County to work with stakeholders regarding location of recreational initiatives to ensure they maintain the integrity of the natural environment. • As stated above, the westerly road was newly constructed to serve the unpermitted and illegal surface mining. The road cannot be used for residential uses under DCC 18.88.060.13 because new houses on the subject properties must be located within 300 feet of roads that existed prior to August 5, 1992. In contrast, the new constructed westerly road was created in 2014 and does not match the alignment of any road that existed prior to 2014, let alone prior to August 5, 1992. As a result, the westerly road should not be used as a basis for siting of residences or allowed for accessing them; rather it should be restored as the vegetated open space it was before 2014. • The Hearings Officer's Decision at the top of page 13 determined that she did not have to consider whether proposed new private roads are inconsistent with the rural character. However, this conclusion fails to analyze the newly proposed roads under DCC 18.124.060.A and 18.128.015.A and B. • The proposed access to the PUD does not satisfy DCC 17.16.105. Part of the access road to the PUD lots crosses over and through Lot 822, which is not part of the subdivision, and there is no evidence that the road over and through Lot 822 meets the relevant County standards and has been accepted for maintenance. Similarly, portions of the proposed new luxury housing lots are served by the new westerly road and proposed private road on the Hammock property. The Hammock property has not been presented as part of the approximately 104 acres that is proposed to be subdivided, nor does it meet the requirements of the last sentence of DCC 17.16.105. • The Decision includes many erroneous factual statements, understandable given the chameleon -like treatment of the proposal by the Developers over the last four years, but at a minimum, the following should be fixed on appeal: o On page 3 of the Decision under the Site Description heading—Tile property does not have any groundwater rights. The property has approximately 55 acres of surface water irrigation rights under TID's Certificates 74146 and 74147. However, over 21 of these acres with water rights are now covered by lined lakes, roads, or structures and are not capable of being irrigated. R TSHUP-I,U7\00391 628.000 TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 5 o At page 20 of the Decision, the Decision incorrectly states that the 150 -deadline is February 26, 2018. However, the Developers waived the 150 -day deadline by 42 days, therefore, the deadline for this appeal is March 5, 2018. o On page 21 of the Decision, the Hearings Officer misstates that TID jointly applied for conditional use approval in File No. 247 -17 -000629 -PA, but that is incorrect. The only applicant in that file is KCDG. o On page 92 of the Decision, the findings under DCC 17.36.140.A.1 should reflect that the recreational facilities were denied. The Developers should not be rewarded for KCDG's illegal and unpermitted surface mining activities and they should not be allowed to obtain premature approval of a PUD that proposed luxury housing with the water ski lake and northerly lake as centerpieces prior to full reclamation of the site. This is particularly the case where the record does not require removal of the offending references to the water ski and northerly lakes in the PUD application, and when the PUD could be designed to be compatible with the character of the neighborhood and existing development after the lakes are removed. The Bishops request a waiver of the transcript requirement due to financial hardship and for efficiency purposes under DCC 22.32,024.D. The Bishops have been fighting this unpermitted water ski lake and northerly recreational lake built as the centerpiece of a luxury housing development for four years at great financial cost. In order to prepare a transcript, the Bishops would need to retain a professional transcriber to ensure quality of product at yet another significant cost. Moreover, should the parties wish to direct the Board to portions of the hearing, or to transcribe select portions of the hearing related to this application, such direction and/or partial transcripts can be provided as attachments to written argument submitted to this Board. The Bishops reserve the right to file further written argument under DCC 22.32.027. The 150 -day clock runs on March 5, 2018. As the applications subject to this appeal have been combined for review with the conditional use permit for the large acreage recreation facilities, and the Bishops expect that the Developers are likely to appeal the denial of those related applications, it seems that any extension of the 150 -day clock should be granted for these files as well. However, in the event that the Developers do not extend the 150 -day clock for the applications subject to this appeal request, the Bishops request expedited consideration of this appeal request and consideration and decision by the Board prior to March 5, 2018. If Developers grant additional time, the Bishops request that hearings on these and the plan amendment (appeal of File No. 247 -17 -000629 -PA) previously appealed by the Bishops not be scheduled for a hearing during the week of March 26 — March 30, 2018 due to previous commitments for their lawyer. Lastly, should the Board receive multiple appeal applications, the Bishops request that the appeal fees be split between the appealing parties. In addition, the County should consider a further refund of the appeal fees for these applications and the other related KCDG applications because some efficiencies will result from a combined hearing. The Bishops enclose the appeal fee of $5,063.50. S ISH OP-LU7\00391628.000 TOMASI SALYER MARTIN Deschutes County Board of Commissioners Page 6 Please provide a response as soon as possible regarding tr transcript requirement because, if it is necessary, the Bishops need prior to the Board's hearing. Thank you. Sincerely, Jennifer M. Bragar JMB/dh Enclosures BISHOP-LU7\00391628.000 requested waiver of the enough time to prepare it VA Mailing Date: Wednesday, February 07, 2018 1 i Community De'1i1Ol phll't1Nl nt D*Par n lOnt 8uitdlrg Saletk piviaNarw E111'irdltrfl@niiN Sails pivimNon '=r+" P,O, Bax 6005 117 NW Lafayette Avenue Bend, Oregon 97748-60{}5 Phone,:. (541) 308-6575 Fax: (541) 365-1764 http://www,deschutes.org/ccl NOTICE OF DECISION The Deschutes County Planning Division has approved the land use application(s) described below: FILE NUMBERS: 247 -17 -000636 -CU 247 -17 -000637 -TP 247 -17 -000639 -CU 247 -17 -000640 -SP 247 -17 -000641 -LM The subject property includes a number of properties as described LOCATION: below. 1, 63344 Palla Lane; Assessor map 17-11-13, tax lot 601 2, 63580 Johnson Road; Assessor map 17-11-13, tax lot 817 3. 19436 Klippel Road; Assessor map 17-11-13, tax lot 820 4, 19276 Klippel Road; Assessor map 17-11-13, tax lot 823 5, 63305 Palla Lane; Assessor map 17-11-13, tax lot 824 6. 63410 Palla Lane; Assessor map 17-11-13, tax lot 825 7. 63380 Palla Lane; Assessor map 17-11-13, tax lot 826 8, 19210 Klippel Road; Assessor reap 17-11-13, tax lot 828 9, No assigned address; Assessor map 17-11-13, tax lot 829 10. 19214 Buck Drive; Assessor map 17-11-13, tax lot 2700 11, 63566 Johnson Road; Assessor map 17-11-14, tax lot 11401 12, 19190 Klippel Road; Assessor map 17-11-14, tax lot 11600 APPLICANT/OWNER: KC Development Group, LLC STAFF CONTACT: Anthonanthony. aau ine, Senior Planner, ores (541) 617-4739• DOCUMENTS: Can be viewed and downloaded from: www buildingpermits Oregon. ov and http•//dial deschutes.ora APPLICABLE CRITERIA: The Hearings Officer reviewed these applications for compliance criteria contained in Chapters 18.04, 18.56, 18.60, 18.84, against 18.88, 18.116, 18.124, and 18.128 in Title 18 of the Deschutes Code (DCC), the Deschutes County Zoning Ordinance; County Chapters 17.16, 17.36, 17.44, and 17.48 in Title 17 of the DCC, Subdivision and Partition Ordinance; as well as against the 0144j?litit Ser -vices iverftwined ivfth T'rifl'e Exhibit 1 Page 1 of 6 procedural requirements of Title 22 of the DCC, Procedures Ordinance. DECISION: The Deschutes County Hearings Officer DENIED the applicant's request for a conditional use permit, site plan review, and landscape management review to establish a ski lake and separate passive recreation pond. The Hearings Officer APPROVED the applicant's conditional use permit and tentative plan request to establish a 10- lot planned unit development (PUD) for single -family dwellings. CONDITIONS OF APPROVAL -PUD A. Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. B. All proposed private roads and public road improvements shall be designed and constructed in accordance with Deschutes County Code (DCC) 17.48 and American Association of State Highway and Transportation Official standards. C. Surface drainage systems shall be designed to prevent adverse impacts to public streets (DCC 18.124.060(F)). D. Road construction plans, which will include the intersection improvements at the intersections of the private roads with Johnson Road and Buck Drive, shall be approved by County Road Department prior to commencement of construction within the County right of way (DCC 17.48.060). The construction plan review fee of $250 shall be received by the County Road Department prior to approval. A copy of the final plans with all required signatures shall be provided to the County Road Department upon approval by all agencies. E. The applicant shall construct all road improvements under the inspection ust andconapprirm oval a I of the County Road Department (DCC 17.48.200). The applicant mrovide a later to the minimum sight distance requirements are met. The applicant may provide Department from a professional engineer certifying that the improvements were constructed in accordance with the improvement plans approved by the County (DCC 17.40.040, ORS 92.097). F. For any open space or common area provided as a part of the planned unit development, the owner shall submit proof of nonrevocable deed restrictions recorded in the deed records. The deedrestrictions as open space or commo narea for as hts to construct dwelling lot, parcel, or tract as long as the lot, parcel, designated or tract remains outside an urban growth boundary. G. Prior to final plat approval, the applicant shall complete all property line adjustments necessary to achieve the property configurations depicted on the applicant's Exhibit A and Exhibit B. H. All structures onth of thsubject pr pony shall comply with the yard setback and height limitation standard 1. All buildings shall comply with the lot coverage standard of the RR10 Zone. 2 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM Exhibit 1 Page 2 of 6 J. Prior to final plat approval, the applicant shall record with the County Clerk, a Waiver of Remonstrance pursuant to DCC 18.56. A copy of the Waiver shall be submitted to the Planning Division. K. Prior to issuance of any building permit for any structures on PUD Lots 8-10, the property owner shall secure LM approval. L. All single-family dwellings constructed as part of the PUD shall be sited pursuant to DCC 18.88.060 and the analysis provided in the findings therein. M. All fencing constructed as part of the PUD shall comply with DCC 18.88.070. N. Section 4.2.6 of the CC&Rs shall be amended to require compliance with DCC 18.88.070 for all fencing. O. At all times, the Administrator of the EMA shall ensure compliance with the WHMP for the PUD. P. Section 4.2.9 of the CC&Rs shall be amended to require compliance with all sections of the W MP. Q. Except as necessary to comply with the WHMP and WMP, to construct the single-family dwellings and residential accessory structures, and to install all necessary utilities, all existing trees on-site shall be preserved. R. All exterior lighting shall be shielded so that direct light does not project off site. S. Provision shall be made for watering planting areas where such care is required. T. Required landscaping shall be continuously maintained and kept alive and attractive. U. Section 4.10 CC&Rsshall bp state that lgl estic i ls to harass wildlife is prohibited, Prior tonalpla appovalthe shalsubmit revised CC&Rs demonstrating conformance with this condition. V. Section 5.2 of CC&Rsal plat approval, the applicant shall submit shall bntamended to state that domestic, revisedvhe ised CC&Rs pen Space shall be leashed. Prior demonstrating conformance with this condition. for W. The educational program t about wildlife and habitat maintenance of the Tanager Pnned Developmen shall be pr ents and guests sented to ODFW for review prior to finalization. nist tor hire a X. Section 1.5.2 of the EMAconduct shall beanamended audit of thefollows, complianceAwith, theraWildlifelHabitat professional biologist to Management Plan". Prior to final plat approval, the applicant shall submit a revised EMA demonstrating conformance with this condition. Y. The audits required by the WHMP shall be submitted to the Planning Division and ODFW. 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM 3 Exhibit 1 Page 3 of 6 Z. The Final Plat shall illustrate the 100 -foot building envelope setback from the ordinary high water mark associated with Tumalo Creek. AA. All private roads shall be constructed to the private road standards of DCC 17.48 and approved by the Road Department, BB. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County and shall require approval from the County Property Address Coordinator. CC. All utility easements shall be shown on the final plat. DD. Prior to final plat approval, the applicant shall secure septic approval for each residential lot. EE. All water lines serving the subdivision shall be installed prior to paving of the associated sections of the private subdivision roads. FF. Prior to final plat approval, the applicant shall secure any necessary approval from the Deschutes County Health Department for the community water system. GG. Prior to finalplat nes extended the to the lot line it of each lwater ot. shall be constructed and operational, with HH. Prior to final plat approval, the applicant shall pay a parks fee of $3,500 ($350 x 10 dwelling units) to the Community Development Department. II. All roads shall be`n system set forthman DCC Title 16provisions of the Deschutes County uniform road naming y be ucted as a JJ. The northernos rutted so the Title 11rivate road at 7 standards and UD Lot 8 approved bylthe RoadrDepartment cul-de- sac sac bulb constructed cul-de-sac shall be depicted on the final plat. KK. The applicant shall secure approval from the Bend Fire Department for the cul-de-sac length referenced in condition of approval PP and the findings under DCC 17.48.160(E) and (F). LL. The following minimum road standards shall apply for private roads: 1. The minimum paved roadway width shall be 20 feet in planned unit developments and cluster developments with two -foot wide gravel shoulders; 2. Minimum radius of curvature, 50 feet; 3. Maximum grade, 12 percent. MM. At least one road name sign will be provided at each intersection for each road. NN. Minimum Requirements - Drainage. 1. et a design facilities storm as defined n andconstructed current Central eive and/or 0 egon atDrainage least at lea 4 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM Exhibit 1 Page 4 of 6 Manual created by Central Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the development or roadway. 2. The system shall be designed for maximum allowable development. 3. Road culverts shall be concrete or metal with a minimum design life of 50 years. 4. All cross culverts shall be 18 inches in diameter or larger. 5. Culverts shall be placed in natural drainage areas and shall provide positive drainage. e to 6, The Designas defined in the Central ' CenttralOregon Stormwatdrainage er Manual control a design stormrm created by Central Oregon Intergovernmental Council. 7, A complete set of drainage plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans. 00. Access onto public right of way or change in type of access shall require a permit. Permits are applied for at offices of the Community Development Department. This decision becomes final twelve (12) days after the date mailed, unless appealed by a party of interest, To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $250.00 and a statement raising any issue lreliedupon rpespand topeal and e'th solveffeachtissue.ificity to afford the Hearings Body an adequate opportunity Copies of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost. Copies can be purchased for 25 cents per page. LER: ORS CHAPTER 215 NOTICE TO MORTGAGEE, LI REQUIRES THAT IF YOU RECE VE THISOENO ICEDIOT VENDOR OST BELPROMPTLY FORWARDED TO THE PURCHASER. This Notice was mailed pursuant to Deschutes County Code Chapter 22.24. 247 -17 -000636 -CU, 637 -TP, 639 -CU, 640 -SP, 641 -LM 5 Exhibit 1 Page 5 of 6 >, Community Development Department po Bax BOOS - Bend, OR 9770B-6n0s 117 NW Lefayetle Avenue Bend, OR 97701 1925 P3U7V4''�011295 JENNIFER BRAGAR 121 SW MORRISON ST STE 1850 PORTLAND, OR 97204-3120 Exhibit 1 Page 6 of 6 7 r �_ \ File No. 247-_ Jud Community Development Department Planning Division Building Satiety Division QnvironmsntO Soils Division p,0. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708.6005 Phone: (541) 388-6575 fax; (541) 385-1764 http://www.deschutes.org/cd LAND USE APPLICATION INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED 1. Complete the application form and provide appropriate original signatures. To ensure timely processing of your application, all materials must be submitted on single -sided, 6.5" x 11" paper. Do not use binders, tabs/dividers, staples or tape. 2. This application shall include one full-sized plan set (to scale) and one plan set reduced to no larger than 11" x 17 include a plot plan that shows all property lines and existing and proposed structures, parking, landscaping, lighting, etc. 3. Include a copy of the current deed showing the property owners. 4. Attach correct fee. 5. All applicable standards and criteria must be addressed in writing prior to acceptance of the application. Detailed descriptions, maps and other relevant information must be attached to the application. - FEE: TYPE OF APPLICATION (check one): Partition (MP) _. Site Plan (SP) Administrative Determination (AD) Subdivision (TP) — Variance (V) Conditional Use (CU) -`At tion (SE) _ Declaratory Ruling (DR) Temporary Use (TU) Setback Exception Other Phone: (Svc) '4 47�) o' i"i•'� Applicants Name (print):�— Mailing Address:�City/State/Zip:590\6 04, Applicant's Email Address: 3 +.{�S3 Property Owner/s Name (if different)*: L-- "^'t' /''` S' ge `fiPhone: LL—� (_-__ Mailing Address: a l�'\tll1Ly1 L7bY ���Q,��_ i N ��NC\tu,•-.� CJ fLw>'�l'7(�`N-.r" ♦ - 1. Rc quest;M 1► �L 4 �zq i�lUa1i114' Lot 2. Property Description: Townshlp�')- f2an a g \� Section Tax t)\ pert vJQ 3. Property Zone(0, ajLN o Property Size (acres or. sq. 4. Lot of Record? (State 5. Property Address: (over) o..) Qwiility Sert)ices Performed with Prime Exhibit 2 Page 1 of 4 w 6. Present Use of Property: 3 N -141.9.r. A PC& -A 7. Existing 8. Property will be served by: Sewer. 9. Domestic Water s r-4.-. e- WtX\4- Onsite Disposal System To the best of my knowledge, the proposal complies with all previous conditions of approval and all other applicable local, state, and federal laws. By signing this application, 1 acknowledge that Deschutes County planning staff may make a site visit($) to the address(es) listed on this application in order to evaluate the property(iss) with the Deschutes County Code criteria applicable to the land use request(s) submitted. Please describe any special circumstances regarding a potential site visit: Applicant's Sign Property Owner's Signature (it different)*: Agent's Name if Mailing Address: ' S is -`tel 24� 1 i Phone: (5L' ) ! i `'b Citylstate/Zip:rx""- ON^ °r44d3 Agent's Email Address: � �'-` d �Vt- _R�5 *if this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. By signing this application, the applicant understands and agrees that Deschutes County may a plete. If the applicaoneIs heard deposit oapplicationr hearings officers' fees prior to the being deemed byffi a hearings ocer, the applicant ill be respons responsible the actual costs tcosts f the hearings officer. 6/16 Exhibit 2 Page 2 of 4 I. -, File No. 247-1 1-� Community Development Department A A A Planning Division 8ulldln0Salety Division En0onmsntai Solis Division P,O, Box 6005 117 NW Lafayette Avenue Bend, Oregon 57708-6005 Phone: (541) 388=6575 Fax: (541) 385-1764 http://www.deschutes.org/cd LAND USE APPLICATION INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED 1, Complete the application form and provide appropriate original signatures. To ensure timely processing of your application, all materials must be submitted on single -sided, 8,5" x 11" paper. Do not use binders, tabs/dividers, staples or tape, 2, This application shall include one full-sized plan set (to scale) and one plan set reduced to no larger than 11" x 17". Include a plot plan that shows all property lines and existing and proposed structures, parking, landscaping, lighting, etc. 3. Include a copy of the current deed showing the property owners. 4, Attach correct fee. 5. All applicable standards and criteria must be addressed in writing prior to acceptance of the application. Detailed descriptions, maps and other relevant information must be attached to the application. FEE: �� r TYPE OF APPLICATION (check one): Administrative Determination (AD) — Partition (MP) Site Plan (SP) Conditional Use (CU) _ Subdivision (TP) Variance (V) Declaratory Ruling (DR) Temporary Use (TU) Setback Exception (SF) _ Other Owe1 ,k.?r t _ ___..._ Phone: (Gb" ) )4� Applicant's Name (print): ����� �"�.�.� Mailing Address:-- Scan �' o�-�e.tt^^ City/State/Zip: (Iv^,D , Applicant's Email Address:_....._.-�--.�. ------ Property Owner/s Name (if different)*: Phone: Mailing Address: w—dt City/State/Zip: 1. Request:_1 cf�>•. iL .oN�loot� 2. Property Description: Townships Range \1 SectionTax Lot caal Sato t0o 3. Property Zone($): 11--`(1 Property Size (acres or sq. 4. Lot of Record? (State reason): 5. Property Address t �' °"`' (over) mo# Qrrntity Services Perf coned zvith Pride Exhibit 2 Page 3 of 4 6. Present Use of Property: - y4 r Q& 7. Existing S. Property will be served by: Sewer, clip P c 6ok M Onsite Disposal 9, Domestic Water Source: 99.t 5titi' To the best of my knowledge, the proposal. complies with all previous conditions of approval and all other applicable local, state, and federal laws. By signing this application, I acknowledge that Deschutes County planning staff may make a site visit(s) to the addresses), listed on this. application In order to evaluate the property(les) with the Deschutes County Code criteria applicable to the land use request(s) submitted. Please describe any special circumstances regarding a potential site visit: Applicant's Signature: L—" -,—IV— -, Property owner's Signature (if different)":-"01i""�` Agent's Name (if appiicabio): V-4— \LQ&-ft.,OW r)-( Tjb r t S+ - Phone: (gam ) �? `t'? O'bl- Mailing Address: e�_ ' a"? __ C3` {' _..-..__ City/State/Zip: Agent's Email Address:_ -- *If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. By signing this application, the applicant understands and agrees that Deschutes County may require a deposit for hearings officers' fees prior to the application being deemed complete. If the application is heard by a hearings officer, the applicant will be responsible for the actual costs of the hearings officer. 6/16 Exhibit 2 Page 4 of 4 DATE: Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 28, 2018 FROM: Judith Ure, Administrative Services, 541-330-4627 TITLE OF AGENDA ITEM: Quarter 3, 2017-18 Discretionary Grant Review RECOMMENDATION & ACTION REQUESTED: Review applications and determine awards for discretionary grant requests submitted for the 3rd quarter of 2017-18. ATTENDANCE: Judith Ure, Management Analyst SUMMARY: Each quarter, the Board of Commissioners reviews applications submitted to the Deschutes County Discretionary Grant Program and makes awards accordingly. On February 21, 2018, the Board will consider requests made during the period of October 1 through December 31, 2017. Applications and funding status worksheets are attached for the Board's consideration. Deschutes County Board of County Commissioners Discretionary Grant Program Fundraising Event Board Meeting Date: February 21, 2018 Organization: Opportunity Knocks Project Name: Opportunity Knocks Annual Meeting Project Period: February 15, 2018 Description: Support for the 2018 Opportunity Knocks Annual Meeting which features voting, appointing directors, singing up new members, and soliciting contributions. Amount of Request: $1,500 Previous Grants: 7/27/2015 $2,4UU.UU1i1 ur arnzauuuaI u"Wn 1/11/2017 $2,000.OD I Business Resources of Central Approved: Declined: Deschutes County Board of Commissioners PO Box 6005, Bend, OR 97701-6005 1300 NW Wall Street, Suite 200, Bend, OR Telephone: 541-388-6571 Fax: 541-385-3202 Website: DESCHUTES COUNTY DISCRETIONARY GRANT PROGRAM APPLICATION Today's Dater / Project Name: 0j';;7,CX , ArT%1 N0C eJ AIVAri %� 1- � Project Beginning Date: {. % f ?{; f ' Project End Date: I rc-6, 75, awl T Amount Requested: L? Date Funds Needed: I AJ 4 P Pp g , f L ' Name of Applicant Or anization: � tvi /� f �,�►, % / � / CSC Address: I P rl- -0 rX / ALJ City & Zip Code: OavlO( ,C 9-7-707 Tax ID #: `5� Contact Name(s): ,)//r)�7� f- t �- Telephone #: 1 J_/-// 7Yr %133 Fax #: ��� Email Address: r///ti) 5� u L ? /7)n On a separate sheet(s), please briefly answer the following questions: 1. Describe the applicant organization, including its purpose, leadership structure, and activities. 2. Describe the proposed project or activity. 3. Provide a timeline for completing the proposed project or activity. 4. Explain how the proposed project or activity will positively impact the community. 5. Identify the specific communities or groups that will benefit. 6. Describe how grant funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures*. 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Attach: Proof of the applicant organization's non-profit status. * Applicant may be contacted during the review process and asked to provide a complete line item budget. 0i -I PORT U N ITY KNOCKS Describe the applicant organization: We are Opportunity Knocks (OK), we provide peer -based training and problem -solving for entrepreneurs and business leaders throughout Central Oregon. We do this by assembling and facilitating teams of 10 to 12 entrepreneurs and business owners and, in the process, creating an environment for them to grow and succeed. Founded in 1996, we now have 150 members, 16 teams, and 32 facilitators. All of the facilitators are volunteers, we will have one paid Executive Director and are currently hiring for this position. We will have a volunteer Board of 19 when we are finished recruiting members, our Board Chair is Jim Schell, OK's original founder. Board members include representatives from EDCO, Bend's Chamber of Commerce and the SBDC. The 16 teams of entrepreneurs and business owners meet once a month for three hours at various donated meeting rooms around Bend and Redmond. Two volunteer co -facilitators administrate and facilitate the monthly meetings following a time -tested format. Members sign Confidentiality Agreements upon joining, they also commit to attending at least ten meetings every year. A key element of the Restructuring we are currently undergoing is the adoption of the Entrepreneurial Team Board of Director's model. This model dictates that the OK board will be include four entrepreneurial teams of four members each; those teams will be entrepreneurial in that they make the decisions within their area of expertise. (The Board Chair can veto their decisions if he deems them to threaten the financial stability of OK.) The four four -person teams include 1) Fundraising/Sponsors, 2) Facilitators, Programs, 3) Marketing/Branding, and 4) Membership. The Board also includes a two -person Finance Committee and a one-person Legal Committee, in addition to the Board Chair. Opportunity Knocks believes that, by helping small businesses and their owners/managers succeed we do the following for our community: 1) We create new jobs 2) We enhance existing jobs Proposed project or activity: The activity is the 2018 OK Annual Meeting. The purpose of the meeting is to 1) vote on any issues that need voting upon, 2) validate the board of director appointments, 3) sign up new members and 4) present an opportunity for our members, sponsors, or vendors to contribute to OK. Timeline for Completing the Activity: The event is scheduled for February 15, 2018. How the proposed project will positively impact the community: As explained earlier in this grant request, our goals are, by helping our businesses grow and succeed, to 1) enhance the jobs of our member -business's current employees and 2) create jobs for new employees. The annual meeting will help us generate funds to do that, as well as to give your members a chance to meet one another. Identify specific communities or groups that will benefit. OK currently has teams in Bend and LaPine, thus our services will immediately help the business owners and their employees within those communities. We have, from time to time, attempted to establish teams in other Central Oregon communities (Madras, Redmond and Prineville), and would hope to continue such regional growth. How grant funds will be used and what are the matching funds or in-kind contributions Grant funds will be used to help offset the cost of the venue, the program, the food, and beverages. How OK will be funded in the future OK has been financially sustainable for 21 years, our financial projections show that our financial sustainability will continue. Our membership is growing, we would hope to continue to provide more and better services for OK members. Deschutes County Board of County Commissioners Discretionary Grant Program Board Meeting Date: February 21, 2018 Organization: OSU Extension -Deschutes County Project Name: Living on a Few Acres (LOAFA) Project Period: March 10, 2018 Description: Hold one -day Living on a Few Acres conference with hands-on demonstrations and lectures targeted to small acreage landowners, ranchers, farmers, and others. Amount of Request: $2,000 Previous Grants: 12/6/2010 $1,000.00 '; Living on a Few Acres Conference 12/12/2012 $11600.00 Livin on a Few Acres Conference 1129/2014 $1,500.00 Living on a Few Acres Conference 1/26/2015 $1,500.00 Livingon a Few Acres Conference 1/25/2016 $1 500.00' Livin on a Few Acres Conference 1/30/2017 1 $1,000.00 `1 Living on a Few Acres Conference Approved: Declined: Deschutes County Board of Commissioners PO Box 6005, Bend, OR 97701-6005 1300 NW Wall Street, Suite 200, Bend, OR Telephone: 541-388-6571 Fax: 541-385-3202 Website: �+� Sv.tiesc6utes_orr DESCHUTES COUNTY DISCRETIONARY GRANT PROGRAM APPLICATION Today's Date: Project Name:._. z Project Beginning Date: Project End Date: Amount Requested: , ff j�('' Date Funds Needed:'17 Name of Applicant Address: City & Zip Code: Tax ID #: { ) lf', y � , Contact Name(s):- Telephone #: Fax #. Email Address: 'G+3 r l`%r�i'a_; 1(�IrY" On a separate sheet(s), please briefly answer the following questions: I. Describe the applicant organization, including its purpose, leadership structure, and activities. 2. Describe the proposed project or activity. 3. Provide a timeline for completing the proposed project or activity. 4. Explain how the proposed project or activity will positively impact the community. 5. Identify the specific communities or groups that will benefit. 6. Describe how grant funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures*: 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Attach: Proof of the applicant organization's non-profit status. * Applicant may be contacted during the review process and asked to provide a complete line item budget. Deschutes County Discretionary Grant Program: December 13, 2017 Toni Stephan, OSU Extension/Central Oregon Horticulture/Small Farms Instructor; toni.stephan(@oregonstate.edu OSU Extension Mission Statement tin collaboration with SmART) Oregon State University Extension Service engages the people of Oregon with research -based information and education that focus on strengthening communities and economies, sustaining natural resources, and promoting healthy families and individuals. In Deschutes County, the OSU Extension Service was established in 1916. A permanent tax base was passed in 1982 to support Deschutes Extension programming which covers the areas of Small Farms, Horticulture, Forestry, 4-H Youth Development and Family and Community Health. Proposed Program Living on a Few Acres - maybe a little less, maybe a little more (LOAFA) is a one -day conference that targets small acreage landowners, ranchers and farmers but welcomes all. As more people strive to be more sustainable on their land they find they need more information on how to achieve that goal. At the 2018 LOAFA conference we are including a new set of hands on courses; chainsaw use (demonstrated) and maintenance, basic repair and maintenance of irrigation systems and tractor maintenance. Our goal with these classes is to get attendees to actually do some of the repairs that they may need to do on their own land. We offer Deschutes Soil and Water the opportunity to have their annual meeting at LOAFA. By doing this we hope more people will stop in at the meeting to see what DSWCD is up to and to hear about the programs they are working on. Of course, the backbone classes of this conference will continue to be provided. Classes that pertain to water rights, efficient water usage, growing productive hay fields and pastures, food preservation, livestock, farming for profit, making forest homes safe and many other supporting classes. LOAFA may be the biggest annual conference of its type east of the Cascades and it draws people from outside the region which contributes to more dollars coming into Central Oregon. LOAFA has been taking place for over 29 years and last year had 182 participants including vendors and speakers. With better weather in 2018 we hope to see even more participants. To accomplish this, OSU Extension continues to collaborate with SmART (Small Acreage Resource Team)* partners to plan, coordinate, market and facilitate this conference. We will offer at least 6 concurrent sessions with 4 time slots for a total of over 20 classes. The LOAFA conference will be held on March 10, 2018, at the Deschutes County Fairgrounds. A tradeshow will introduce landowners to local vendors encouraging networking and shopping with our local businesses. Timeiine Oct. 23, 2017: Organizational meeting with SmART group, classes and speakers discussed, assignments given, send out "Save the Date" emails to group lists Nov. 27, 2017: Virtual meeting: Planning progress updated, class progress updated Dec. 2017: Sponsors sent application forms Dec. 18, 2017: Continue planning, marketing strategies discussed, update progress, apply for grants Jan. 15, 2018: continue marketing (advertising, posters, press releases), progress meeting Jan. 2018: Registration open Feb. 2018: Process registrations, continue marketing, organizational meeting Feb. 22, 2018: Last organizational meeting Mar. 09, 2018 Set up Middle and South Sister buildings for conference Mar. 10, 2018: Event: Living on a Few Acres - maybe a little less, maybe a little more Apr. 2018: Wrap up and review, Thank you letters sent Impact on community Health LOAFA 2018 will impact owners interested in agriculture, natural resources and family health. Attendees will become more knowledgeable in areas that not only will help them be good stewards of the land and water resources but will help them put food on their own table, as well as possibly donate to local foodbanks. New farmers will be able contribute to the local food market contributing the freshest of food possible. Central Oregon produces some of the most desirable hay in Oregon. Information taught at this conference will help people learn how to protect their property and other's from the destruction of fire and pest infestation in native trees. Those community members who attend LOAFA will also be exposed to agencies that can help them solve problems, created plans and help them to achieve goals for their property whether that be weed management, livestock production, sales of product or just a beautiful space to live. Specific communities/groups that will benefit People that live on small acreage in Central Oregon and beyond our region will benefit from this conference. Agencies that support and serve land owners will have an avenue to get information out to the individuals who want to make a difference. Businesses that are supported by lifestyles and products needed by small acreage owners and those with similar goals will benefit from better informed customers. Hotel rooms are reserved for out-of-town speakers, and as the event grows, it will help local businesses as even more people travel here for LOAFA. Anticipated Expenditures LOAFA is totally self-supporting through the small registration fee of $50/person, the vendor booth charge and sponsorships. We are currently seeking sponsorship to cover the expense of our guest lecturers, advertising and class materials. We are requesting $2,000 from the Deschutes County Discretionary Grant Program to help cover these expenses. We need to get the word out about this event and believe that advertising is vital to the success of LOAFA. Marketing efforts will include the publishing and distribution of posters and brochures, paid advertisements, email lists, newspaper articles, press releases and other media outlets. Budget $ 450.00 Paid advertisements in local media $ 200.00 1000 color brochures and flyers @ $0.25 each $ 50.00 200 color posters @ $0.25 each $ 100.00 registration packets/class handouts $ 700.00 facility fee $ 450.00 speaker fees for 3 traveling speakers, lodging and food $ 400.00 fuel for 3 traveling speakers $ 250.00 4H club for set up and tear down of tables and chairs $ 2,400.00 Catering, all day beverages and lunch $ 1,295.00 Website and registration facilitator $ 4,750.00 Conference coordinator $ 11,045.00 TOTAL We have solicited sponsorship from many businesses to help cover speaker and committee lunches ($20.00/person) and some of the organizational costs. Last year we received $3,900 in sponsorship and $583 in - Kind donations. Committed to date: In-kind: SmART team partners (time and materials). *SmART partners include: Tammy Harty (DSWCD), Jenny Hartzell -Hill (COID), Spring Olson, Gen Hubert (Deschutes River Conservancy), Theresa DeBardelaben (ODA), Rick Leeper (Helena Chemical), Mylen Bohle, Scott Duggan, Nicole Strong, Clare Sullivan, Dana Martin and Toni Stephan (OSLI Extension Service) Thank you for your consideration of our grant request. Toni Stephan 541-548-6088 Oregon state University "' Extension Service Deschutes County Board of County Commissioners Discretionary Grant Program Board Meeting Date: February 21, 2018 Organization: Saving Grace Project Name: Post -Separation Violence Training Project Period: 5/10/2018 -- 5/11/2018 Description: Present a two-day training facilitated by faculty from the National Council of Juvenile and Family Court Judges for community service providers and judges. Amount of Request: $2,000 Previous Grants: 6/23/2014 $1,600.00 Hero's Luncheon 1/26/2015 $1,200.00 Hero's Luncheon 4/13/2016 $1,200,00 Hero's Luncheon 4/17/2017 Approved: Declined: Additional Information For additional information about the Deschutes County Discretionary Grant Program, please contact Judith Ure, Management Analyst, by telephone at (541) 330-4627 or by e-mail at judithu�,deschutes.ora. Deschutes County Board of Commissioners PO Box 6005, Bend, OR 97701-6005 1300 NW Wall Street, Suite 200, Bend, OR Telephone: 541-388-6571 Fax: 541-385-3202 Website: www.deschutes.ors, DESCHUTES COUNTY DISCRETIONARY GRANT PROGRAM APPLICATION Today's Date:[ 12/28/17 Project Name: Post -Separation Violence Training Project Beginning Date: I May 10', 2018 I Project End Date: I May 11'', 2018 Amount Requested: I$2,000 I Date Funds Needed: I 5/1/18 Name of Applicant Saving Grace Organization: Addres I 1004 NW Milwaukee Ave Suite 100 s: L City & Zip Code: Bend OR 97703 Tax ID #: Federal 1D number and fiscal year: 93 - Contact Name(s): 07977194 Gail Bartley Telephone #: 541-410-1356 Fax #: 1-866-362-9257 Email Address: gail@maryspl.org Ona separate sheet(s), please briefly answer the following questions: 1. Describe the applicant organization, including its purpose, leadership structure, and activities. 2. Describe the proposed project or activity. 3. Provide a timeline for completing the proposed project or activity. 4. Explain how the proposed project or activity will positively impact the community. 5. Identify the specific communities or groups that will benefit. 6. Describe how grant funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures*. 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Saving Grace Imagine Life Without Violence Deschutes County Discretionary Grant Program 1. Describe the applicant organization, including its purpose, leadership structure, and activities. Saving Grace was established in 1977 in Central Oregon to provide comprehensive domestic violence and sexual assault services. Free services are provided for all victims of intimate partner violence, sexual assault, stalking, human trafficking and dating violence, regardless of their status. Increased safety, prevention of re -assaults, healing from trauma and re-establishment of normal life are a few of the measureable outcomes we are able to provide those we serve. Staff and volunteers of Saving Grace provided 17,473 crisis response services to 5,438 individuals in the 2016-2017 fiscal year. Services include a 24-hour hotline; a 24 -bed shelter and childcare center; a supervised visitation/exchange center for post- separation parenting time (Mary's Place); a therapy and counseling center; and outreach centers in Redmond, La Pine, Prineville and Madras for crisis response where people live. Saving Grace has a variety of collaborations to offer services with welfare and child protection, law enforcement, the court, public health and the hospital emergency room. Saving Grace provides accessible services tailored to the needs of the local community and underserved populations. Saving Grace follows the Carver Governance model for non -profits. Our structure includes a board, executive director (Janet Huerta) as well as a management team consisting of program managers and department heads. SavingGrace utilizes ethical service guidelines and organization -wide outcome evaluations, is a low-risk auditeeforthe Federal Single Audit and its leadership and staff are regularly requested to consult on standards by new and existing programs. 2. Describe the proposed project or activity. This a two-day training facilitated by faculty from the National Council of Juvenile and Family Court Judges (the Council). The Council is the national technical assistance provider for all family court related matters. The training will focus on improving participants understanding of post separation domestic violence and its impact on child custody. There are two audiences with separate trainings for each: 1) community service providers working with survivors of domestic violence and their children; 2) judges. Saving Grace Imagine Life Without Violence Deschutes County Discretionary Grant Program Day one will focus on community partners. Day two is designed exclusively for judges. 3. Provide a timeline for completing the proposed projector activity. The community training will be held from 8 am to 5 pm on May 10. The judicial training will be held on from 8 am to 5pm on May 11. 4. Explain how the proposed projector activity will positively impact the community. In the County, approximately 24,886 women (1,941 Latino) aged 18+ have experienced domestic violence, and approximately 4,123 women (322 Latino) aged 18+ have experienced domestic violence in the past 12 months.' Most people believe that a victim of domestic violence will be safe once they separate from the abuser. Unfortunately, leaving does not usually put an end to the violence. Oftentimes, this can be the most dangerous time in a relationship. Leaving an abuse relationship requires strategic planning and possible legal intervention in the form of a restraining order or stalking order. In 2015-2106, domestic violence survivors filed 520 restraining orders - 214 with children under the age of 18. When these victims seek help (calling law enforcement, applying for a restraining order, filing for divorce and child custody, etc.) post -separation, they become entangled in multiple systems. When these systems do not have adequate knowledge of post- separation offender tactics, victims and their children may be re -victimized. The Mary's Place Supervised Visitation & Safe Exchange program of Saving Grace is in the unique position of working with all members of domestic violence -impacted families post- separation, providing services to the adult victim, children, and offender, for periods of time ranging from several months to multiple years. As a result, Mary's Place has identified the need for education about the dynamics of post -separation violence and trauma for community partners who are also involved with these families. The proposed training seeks to improve community system's understanding of post -separation needs of this population, resulting in greater safety for victims and accountability for offenders. 5. Identify the specific communities or groups that will benefit. • Domestic violence survivors and their children • Judges • Court Staff • District Attorney • Deputy District Attorneys ' NISVS Detailed State Tables and Full Report: https ;/www cdc gov/violenceprevention/nisys/`summarvreports.htmI- Saving Grace Imagine Life Without Violence Deschutes County Discretionary Grant Program • Victims Assistance • Private Attorneys • Legal Aid Attorneys • Saving Grace Advocates • Mary's Place Facilitators • Deschutes County Behavioral Health • Batterer Intervention Providers • Law Enforcement • All other community service providers who work with domestic violence survivors and their children 6. Describe how grant funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures. Grant funds will be used to pay for $2,000 of the total $5,850 consultant fees. The 60 nin *r n+hcr nrant f inrk_ �iL,VVv grant iullua vvn- RESOURCES $2,000 Deschutes County Discretionary Grant National Council of Juvenile & Family Court $4,170 Judges (NCJFCI) $1,500 Deschutes County Behavioral Health Justice for Families Grant $2,350 TOTAL RESOURCES $10,020 EXPENDITURES Consultant Fees ($650/day X 3 consultants X 3 $5,850 days) Airfare ($500 each X 3 consultants/1 NCIFCJ $2,000 staff) Hotel (GSA $112 X 3 consultants/1 NCJFCI $1,344 staff) Per Diem (2 travel day/2 training day X 3 $826 consultants/1 NCJFCI staff) TOTAL EXPENDITURES $10,020 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Not applicable Deschutes County Board of County Commissioners Discretionary Grant Program Board Meeting Date: February 21, 2018 Organization: Citizens4Community Project Name: C4C Presentations/Community Conversations Project Period: 11/1/2017 —12/31/2018 Description: Hold quarterly Civility Project events, skill -building sessions, and community conversations in Sisters Country during 2018. Amount of Request: $1,500 Previous Grants: 4/13/2016 $1,000.00 Sisters Country Civility Project Approved: Declined: 10/21/2017 Constant Contact I,"a^ Campaigns Contacts Reporting Ust Growth Tools Library Integrations 0 VES ~v ocg Deschutes County Board of Commi,ssiouer& PO Box 6005, Bend, OR 97701-6005 1300 NW Wall Street, Suite 200, Bend, OR Telephone: 541-388-6571 Fax: 541-385-3202 Website: www. eschutes.ore DESCHUTES COUNTY DISCRETIONARY GRANT PROGRAM APPLICATION Today's Date: t -' _ Project Name: `�(, . cG�t��.t1 rv(-s r- Project Beginning Date: tr ► (' ( Project End Date: .Amount Requested: '� %rs`3 0 Date Funds Needed: Name of Applicant City & Zip Code: Si � �-r?� 0 k -1 -IS ATaz ID #; r jt ^ J (34),,X t J I Contact Name(s): * Telephone #: r •» C i �� p Fax #: F_- Email Address: r�©� �ivhn n t nariea ���ry, tv On a separate sheet(s), please briefly answer the following questions: 1. Describe the applicant organization, including its purpose, leadership structure, and activities. 2. Describe the proposed project or activity. 3. Provide a timeline for completing the proposed project or activity. 4. Explain how the proposed project or activity will positively impact the community. 5. Identify the specific communities or groups that will benefit. 6. Describe how grant funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures*. 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Attach: Proof of the applicant organization's non-profit status. Have Feedback? (c) 1996-2017 Constant Contact, Inc. Terms & Conditions I Privacy Statement I Anti -Spam Policy I Share Screen * Applicant may be contacted during the review process and asked to provide a complete line item budget. hiIps:llui.constantconiact.comltnavmapldistuilconteoWemailftreports/44895921-22aBAbl7-aae4-5d429dc9ed6dibounced 2l2 Deschutes County Discretionary Grant Program Application 1. Describe the applicant organization, including its purpose, leadership structure and activities. Who We Are Citizens4Community (C4C) is the grant applicant. It was founded as a nonprofit corporation in Sisters, Oregon on Jan. 4, 2016 and achieved IRS nonprofit designation in September 2016. The mission of Citizens4Community is to further civility, collaboration and civic engagement in Sisters Country. We provide tools and opportunities designed to encourage respectful communication and to build trust. Why We EXist C4C was created to respond to a period of devitalizing turmoil in Sisters Country and to help prevent such turmoil from recurring. Sisters is a small town of 2,000 people, with the City providing goods and services to a larger community of 10,000. Long-time residents and newcomers have been drawn to the extreme beauty of the area. Also, amazing cultural offerings—including Sisters' renowned folk music and quilting arts—have drawn a significant population of creative people to Sisters Country. This passion for environmental and cultural assets, plus strong opinions for what Sisters should or should not become, has in recent times led to polarized stances on issues within the community. Occasional rumblings of discontent intensified from 2014-2015 when a rash of challenges provoked local distrust and discord. Passionate individuals aligned on opposite sides of key issues. Communication broke down. Language deteriorated into personal attacks that played out publicly in social interactions and the media. Many grieved how Sisters was portrayed; and the bitter negativity diminished residents' willingness to share opinions and volunteer. Civic engagement was deteriorating to a dangerous level when three City Councilors, the chairperson of a City committee and a City staff person resigned during just a four-month period in 2015. During the spring of 2015, Sisters Country resident Robyn Holdman learned of a Duluth, Minnesota community foundation program the Speak Your Peace (SYP) project—that was successfully encouraging civil dialogue within diverse communities nationwide. She spent the summer and early fall talking with local leaders to determine if there would be any benefit to introducing the program and its 9 tools for civility to Sisters Country residents. That September, Robyn met with City Councilor Amy Burgstahler, who encouraged an open -to -the -public Sisters City Council workshop to learn about Speak Your Peace and assess public interest. Forty -plus people—a healthy turnout of intensely interested individuals=attended the Oct. 8, 2015 workshop; and many local leaders encouraged Robyn to bring the national Speak Your Peace spokesperson to Sisters. Robyn reached out to others in Sisters Country who had publicly expressed concern with the uptick in incivility, and she began to build a team to seek funding for that SYP event. The Ford Family Foundation had invited her to apply for project funding. However, no local nonprofit or governmental group could be found that would be suitable to serve as a champion to receive the funds and introduce the civility project to Sisters Country. Seeing a clear and critical need to provoke serious discussions about the costs of incivility to Sisters Country, Robyn and her team ventured forth and created Citizens4Community. Deschutes County Grant citizens4communiMcom Page 1 of 6 Deschutes County Discretionary Grant Program Application Citizens4Community ultimately received a $2,250 grant from the Ford Family Foundation. This enabled them to bring Rob Karwath of the Speak Your Peace civility project to Sisters in mid- January 2016. Despite inclement, snowy weather, more than 300 community members showed up to meet with Rob at multiple local gatherings. Private individuals, service club members, business leaders, U.S. Forest Service staff, media, City staff and representatives of several other organizations offered feedback via surveys distributed during each gathering. The results of 114 completed surveys and the input of 30 individuals who attended Rob's "Next Steps" meeting all strongly encouraged Citizens4Community to launch the Sisters Country Civility Project. The initiative has since been using 9 basic tenets offered by Speak Your Peace (SYP) and P.M. Forni's book, "Choosing Civility." The tenets are presented on the Sisters Country Civility Project's "9+1 `fool Cards." (sample tool card has been provided) The C4C website, www.citizens4community.com, tells our story, recognizes our many supporters and adopters, and offers tools to encourage respectful communication and strengthen civic engagement. C4C was formed to counter a negative wave of disrespectful communication. And as a community we recognize that we must continually find productive ways to connect ideas and people and to harness our social capital. We're committed to helping Sisters Country move forward in a way that acknowledges diverse voices while empowering a sense of community involvement, ownership and prosperity. Working with civility as the cornerstone for community building, our nonprofit's mission includes collaboration -building efforts. That is, we are encouraging the diverse groups in Sisters Country to look beyond their entrenched "silos" and to work together to meet local challenges and opportunities that can be more effectively addressed with strategic cooperation. Our Leadership Citizens4Community is guided by a six -member board–community leaders who are dedicated to spearheading civility, collaboration and civic engagement efforts that yield long-term outcomes. The board meets monthly to focus on organizational development, to further the Sisters Country Civility Project, and to consider community conversations and collaborative efforts that might benefit Sisters. We are committed to making Sisters a wellspring of civic engagement and a beacon for other communities. Board.: Robyn Holdman, president. Members: Amy Burgstahler, Jeff Campbell, Kent Neff, Maret Pajutee, and Bruce Rognlien (bios attached). Advisors: Wendy Birnbaum, Jack & Jan McGowan, Kay Grady and Clark Brody. Our Activities Formation: October 2015 -January 2016 — During October, about 40 concerned residents met at Sisters City Hall to learn about SYP. Community members supported the formation of a local civility project. C4C received a $2,250 grant from Oregon -based Ford Family Foundation to bring national SYP spokesperson Rob Karwath to Sisters. In January, more than 300 people attended Rob's forums on SYP. Their survey responses supported the launch of C4C and a grassroots Civility Project. The citizens4cominuiiity.com website launched, and C4C became a nonprofit organization. Deschutes County Grant citizens4community.com Page 2 of 6 Deschutes County Discretionary Grant Program Application Launching: February 2016 to present — C4C created the Civility Project/"9+1 Tool Cards," window decals, a poster and ,civiligrams" to promote the initiative and engage people. The Project was presented to groups in Sisters Country. More than 30 groups have adopted the 9 tools of civility and have become Civility Project partners. The Project is already fostering a more effective, inclusive approach to problem -solving. For more details about our launch period activities, see: citizens4community.com/who-we-are/ and citizens4community.com/news-1/. Outreach & Engagement: C4C holds quarterly Civility Project presentations and skill -building sessions. C4C also has served as a non-partisan, neutral -party convener of "Civility Certified" events for other organizations. For instance, last fall C4C hosted the Sisters City Council Candidates Forum, at the request of the City, to help ensure the event would remain a productive evening to learn more about each candidate. C4C also helps Heart of Oregon teach leadership skills to its program participants. Dollars we raise return to the local community; for instance, C4C worked with the Sisters High School art program to create our poster, nonprofit banner (for use at local festival and promotional booths) and other materials. Our website, Constant Contact emails to a mailing list of more than 350 individuals (and soon a Facebook page) all help inform Sisters Country of valuable civility tools, upcoming community -building events and our work. Local Support: Through donations by local sponsors, C4C has funded printed materials for the Civility Project and the design and launch of a growing website. We've received a grant from the City of Sisters to create a leadership training and collaboration building program with Heart of Oregon Youth Build. A grant covers the work of a communications expert to maintain the high quality of our printed materials and to expand our social media presence. Sponsor dollars also cover the costs for our quarterly community dinners, speaker fees and event advertising. And C4C board members and volunteers have donated funding and 5,000 -plus hours of time and talent to launch, manage and implement C4C's efforts. 2. Describe the proposed project or activity. C4C seeks a $1,500 grant to fund: : Quarterly Civility Project events and skill -building sessions in Sisters Country for 2018. Community Conversations in 2017 and 2018 to address issues that are bubbling up in our community. The intent is to encourage respectful discussions before people and issues become polarized. C4C believes it is critical to continue the momentum of civil discourse and civic engagement that began in January 2016 (with SYP presentations by Rob Karwath). Our goals are four -fold: 1) To provide an ongoing opportunity for people to learn about the fundamentals and benefits of civil discourse (and to raise awareness about the toll and costs of incivility on a community). 2) To help our civility partners increase their knowledge and improve their skills in encouraging respectful communication; and to also help the community adopt communication values that can help foster the trust necessary for healthy and effective civic engagement. 3) To serve as neutral hosts to facilitate conversations about issues and needs impacting Sisters. 4) To encourage collaboration among the diverse interest groups and communities in Sisters Country. Deschutes County Grant citizens4communi!yxom Page 3 of 6 Deschutes County Discretionary Grant Program Application Civility Project Presentations & Skill -Building Sessions We continue to check in with the Civility Project adopters/partners to determine their needs and challenges. We always seek to address those needs and challenges as we structure presentations and workshops. Our Nov. 15, 2017 program will feature author, international consultant and sought-after speaker Moe Carrick of Moementum, Inc. She has custom -created the dynamic program, "The Paradox of Connection," for C4C. She will discuss how to reconnect in a so-called "highly connected" world that paradoxically encourages division and disengagement. Her talk will explain why "showing up" (even when it's hard) is key, and how to view community through a new lens of "courage, vulnerability and connection." Additional, future program topics could include: 1) The importance of being— and how to be—a "Profoundly Inclusive" community leader (borrowing from a Ford Family Foundation term). 2) How can we more effectively move outside of our silos of interest to build more truly collaborative efforts? 3) The immeasurable value of taking responsibility—how to better recognize and adjust for our own biases so we can communicate more honestly and productively with others (and ourselves). Community Conversations in response to a well-received senior citizen's editorial (in The Nugget) observing a need for better coordinated services for seniors in our rural community, C4C recently began working with senior advocates to plan a Nov. 3 Town Hall on how to create a more "Age -Friendly Community." C4C helped secure the event's expert speaker, Margaret Neal. And, right after the Town Hall, C4C will host a Community Conversation to gather additional community input and to lead the community in further examining the issue. Citizens4Community also is helping local seniors form their own Senior Alliance, to encourage significant community collaboration on the issue moving forward. Sharing What We Learn While the responsibility of C4C is to provide tools to encourage respectful communication in Sisters Country, we are open to sharing our knowledge and experience with other Central Oregon communities. We will invite civic leaders from throughout Deschutes County to attend the quarterly civility presentations held in Sisters. Based on available time and financial resources, our volunteers are willing to present our project in areas outside Sisters Country. 3. Provide a timeline for completing the proposed project or activity. The timeline for completing the proposed project is through the end of 2018. Civility Project meetings and workshops will be held quarterly. Community Conversations will be convened as issues and opportunities arise. Deschutes County Grant citizens4communityxom Page 4 of 6 Deschutes County Discretionary Grant Program Application 4. Explain how the proposed project or activity will positively impact the community. C4C's efforts provide the Sisters Country with information, tools and opportunities to learn and practice skills that encourage more respectful communication. Our efforts are helping to build trust and greater collaboration among people living and working here. Additionally, our efforts are helping to grow core values that increase civic engagement and strengthen social capital. Our Community Conversations will further encourage dialogue that may decrease fear, anger and polarization, which has in the past paralyzed or demoralized our community. These Conversations also will nudge parties (people that otherwise might choose not to cooperate with each other) forward—toward trust -building and collaboration. Identify the specific communities or groups that will benefit. Sisters Country is home to 10,000 -plus residents, including 2,000 within the City. C4C's quarterly sessions provide valuable, ongoing information and services to civility program partners and to every resident within Sisters Country. We reach out to families, students, churches, organizations, businesses and government representatives and invite them to attend these instructive and productive quarterly meetings. All benefit from this civic engagement, which is designed to propel more civic engagement. As for the Community Conversations, the disenfranchised and groups without a formalized voice will have an opportunity to bring their concerns and opinions forward for discussion in an environment that is receptive and respectful. 6. Describe how the funds will be used and include the source and amounts of matching funds or in-kind contributions, if any. Itemize anticipated expenditures. Presentations & Skill Building Sessions - $1,000, Community Conversations - $500 The Discretionary Grant funds will be divided equally among the quarterly sessions held in 2018, and will help underwrite the Community Conversations spanning from 2017-2018. These funds will be used to help cover costs for newspaper advertising (about $220 per ad), flyers, speaker fees, written materials, sound equipment rental and miscellaneous items. Civility Project partner Sisters -Camp Sherman Fire Department provides the meeting space at no charge to C4C (a $300 -plus value). We have garnered donations from local businesses for food/beverages for the conununity-building light dinners that precede the sessions; and we expect to continue to fund dinners in that manner. Sisters Coffee Company donates coffee and tea ($50/session value). Ray's Food Place has offered to provide soup, salad and bread for the dinners ($150/session value). C4C members continually donate their personal funds to program efforts and have, to date, recorded 5,000 -plus volunteer hours. These efforts will continue. 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Citizens4Community will seek funds from event sponsors, donations of cash and in-kind materials and services to continue our efforts and quarterly sessions. C4C also will seek sponsors for our Community Conversations. We recently enrolled in Ray's All Access Community Deschutes County Grant citizens4community.com Page 5 of 6 Deschutes County Discretionary Grant Program Application Rewards Program, and we will explore additional funding from C4C membership fees, event fees and other income -generating activities. Deschutes County Grant citizens4communily-com Page 6 of 6 The CitizenOCommunity Team 2016-'17 BOARD MEMBERS & ADVISORY GROUP MEMBERS ROBYN HOLDMAN • BOARD PRESIDENT Robyn grew up in a small farming community near Pendleton, OR. The rural setting cultivated in her an appreciation for hard work and a deep respect for how cooperation and shared purpose—plus a nurturing measure of country diplomacy—often give rise to a warm and satisfying sense of true kinship. Affection for those values guided Robyn's career aspirations. She went on to earn a bachelor's degree in International Relations from American University in Washington, D.C. Robyn later became Special Assistant to the Director for the Oregon Department of Agriculture, where she helped coordinate industry development efforts. In addition, she spent nearly a year living in Japan, serving as a cultural ambassador for Oregon to the key industrial district of Toyama, on the Sea of Japan. In 1998, Robyn moved to Central Oregon and transitioned to a career working with nonprofit organizations—further applying her skills in process and project management to her passions for outreach, community development, team -building and communication. Her experience has included assisting the Boys & Girls Clubs, Hospice of Bend -La Pine, and Volunteers in Medicine. She also helped establish the Nonprofit Resource Council and the Nonprofit Network for Central Oregon. As she and her husband were looking toward retirement, they desired that sense of familiar connection with others that living in a small community had delivered so poignantly in Robyn's youth. They moved to Sisters from Bend in 2006. Robyn learned about Speak Your Peace from a fellow Bend Rotarian—a former Tahoe Truckee Community Foundation president who had guided that area's implementation of the SYP Civility Project. The program's tools, Robyn speculated, might serve Sisters well when the community faces challenges. 7 spent almost all of 2015 talking with local residents and leaders about ways Sisters might build a stronger platform for respectful communication—thinking that it could serve us well as we address economic development and societal issues and opportunities." Pursuit of that goal ultimately led to the development of the Sisters Country Civility Project—in partnership with SYP—and formation Citizens4Community, for which Robyn currently serves as chairperson. MARET PAJUTEE - BOARD MEMBER Maret recently retired as the Ecologist on the Sisters Ranger District on the Deschutes National Forest. She worked for the Forest Service for 25 years and continues to volunteer on special projects. During her tenure as District Ecologist, she managed the Invasive Plant and Rare Plant Programs and worked on planning Watershed Analysis, Forest Restoration, and Wild and Scenic River management. Her education includes a BS in Zoology and a MS in Entomology from Oregon State University. 7 have a passion for partnerships and enjoy helping to build relationships. These are values I see reflected in C4C and key reasons I was interested in joining the C4C leadership team." Maret has put that passion to work to tackle complicated natural resource issues. She was the Team Leader for the Glaze Forest Restoration Project which brought together environmental and industry groups to find agreement on old growth restoration. In an era of litigation, it was the first commercial timber sale on her District not appealed in 13 years. She also led the largest place name change project in Oregon, which renamed 16 features using the word Squaw to comply with State law and Tribal concerns. She completed her career as the lead on a partnership with the National Forest Foundation, Treasured Landscapes Campaign—"The Tale of Two Rivers"—which contributed more than $4 million dollars of funds and assistance for restoration of the Metolius and Whychus Wild and Scenic Rivers. For her work to protect the Metolius and Whychus rivers through conservation, partnerships and Federal management, Maret received the Frank Church Wild and Scenic Rivers Award from the River Management Society. She lives in Sisters with her husband, Rod Bonacker, a retired Forest Service planner and firefighter. KENT NEFF • BOARD MEMBER Kent has been coming to Sisters Country for more than 40 years—first as an owner of a house in Sisters Country, then as a frequent visitor, and now as a permanent resident. He and his wife, Linda Wolff, live in the City of Sisters. Inspired by his love for Sisters and his appreciation for the positive attitudes and can -do spirit of its residents, Kent joined Citizens4Community soon after the group's formation. During the last several years, he said, he has observed a number of situations in which area residents voiced their opinions disrespectfully, and communication broke down. He believes this affected the community's ability to work together in Sisters to get things accomplished, especially when the issues were controversial. "I want to work with other residents of Sisters Country to help our conversations remain respectful, while still encouraging people to freely express their opinions. We need to protect our right to disagree; and I believe we can best protect this right by practicing more civil conversations with each other." Kent has worked many years as a consultant to organizations, groups and individuals, helping them communicate with each other more respectfully, share their opinions more effectively, and work together more productively. It is experience that he believes will prove helpful to Citizens4Community. JEFF CAMPBELL • BOARD MEMBER Jeff was born and raised in Eastern Oregon, where an early life full of physically demanding work and a penchant for tinkering with all things mechanical and electronic led to his decision to pursue higher education. The first of his family to go to college, Jeff carved a path familiar to many but foreign to him. After earning a degree in engineering, California's Silicon Valley beckoned. Jeff spent 15 years in the nation's heart of high tech, building a successful career in the electronics industry and ultimately traveling the globe. During a trip to Bangalore, India, to provide supervision on construction of a new engineering facility for Juniper Networks, Inc. he was struck by the disparity of class and caste; and in him a new understanding of self developed. These experiences compelled Jeff to provide encouragement and financial resources for family and friends to pursue higher education. After years in the city, that familiar, persuasive voice of rural Oregon remained—tugging-- coaxing a return. And, in 2006, Jeff came back to his home state, choosing to settle in Sisters Country. He spends his personal time in the outdoors, skiing and snowshoeing during the winter months and playing golf, cycling, hiking and running in warmer months. The outdoors and exercise have always been somewhat of an obsession for Jeff, and a better place than Central Oregon was not to be found. His lifelong desires to contribute and to make a difference led him to pursue a seat on the Sisters Park & Recreation District board of directors. First elected in 2009, Jeff helped grow SPRD into the vital, responsive and fiscally sound community asset it is today. He currently serves as board chair. Jeff joined Citizens4Community after attending C4C's Speak Your Peace events held in January. He concluded that supporting and encouraging civility could help fundamentally strengthen Sisters Country. He brings to C4C strong management skills, a proclivity toward innovative thinking, a keen belief in self-determination and a broad range of edifying life experiences—from years of working traditional jobs to leading an international engineering organization. His diverse background and his zeal for collaboration and problem solving inform his community service and help drive his passion for it. "I use these words often: 'Do thegreatestgood with whatyou have.'1 think about them and say them aloud with regularity. I'm not often presented with a perfect set of circumstances; and 1 prefer to take what resources I have and apply my best effort toward making something good." BRUCE ROGNLIEN * BOARD MEMBER "Given my past experience, it seems natural to help promote smart, healthy growth—in this case, by promoting civility within our community. I'm not shy about speaking up about the importance of civility, And I believe the Sisters Country Civility Project and Speak Your Peace basically help reinforce the 'golden rule" in a manner that will help our community build—and rebuild—trust." Born in LaPorte, IN, Bruce earned a business science degree from UCLA and served in the U.S. Navy before working as an automotive aftermarket rep for A. Walt Runglin Company (1962-1972). Next, as president of Cardillo Travel in Los Angeles, he grew the company into the fourth largest agency in the country. Then, after purchasing Associated Travel from Cardillo in 1980, he led it to become the 13th largest corporate travel management company in the U.S., employing 550 people across 28 states. Bruce retired from Associated Travel as Chairman Emeritus in 1998 and went on to teach a course in entrepreneurship for four years at UCLA's Anderson School of Business. For many years he has enjoyed finding—and investing in—promising start-ups. Also, Bruce has dedicated countless hours serving on boards for Boy Scouts of America and the Christian International Scholarship Foundation; and he has been involved in community programs including Step Up On Second—which helps those with mental illness recover their lives and productivity. He and his wife, Marleen, are Sisters residents; they also enjoy visiting Southern California, where their children still reside. AMY BURGSTAHLER • BOARD MEMBER As a former newspaper editor, creative director and Sisters City Councilor, Amy brings to W her passion for fostering meaningful communication, developing innovative solutions and encouraging civic engagement. She worked for the Sacramento Bee, the University of California, Davis, and a midwestern - based advertising agency before relocating to Sisters with her husband and son in 2014. "Throughout my career I've sought to connect people with information and new perspectives and to help highlight stories and values that bring people together and that ultimately build a greater sense of community—a sense of connection that inspires involvement. I was particularly drawn to help develop W—and the Civility Project—because of the positive platform it provides to build understanding and increase effective engagement." CLARK BRODY • ADVISOR A career educator, Clark's experience spans elementary to high school, and includes positions from music teacher, to principal, to assistant superintendent for a school district. He retired from the Department of Education as Deputy Superintendent. As a state level administrator, there were always diverse perspectives to account for; and his focus was to be sure everyone had an opportunity to be heard and understood. Clark brings to W a passion for collaboration and skills in organization, communication and process development. He and his wife love Sisters Country and have called it home for the past six years. During that time, he said he has observed a number of challenges reported by the media—issues that deteriorated and became personal and unpleasant. "Through C4C, I want to inspire opportunities for learning. And I want to help our community develop tools to improve communication in a manner that also remains respectful to others who do not share the same point of view. As we improve communication, I believe it will foster more creative problem solving and improved collaboration in Sisters Country. JACK MCGOWAN • ADVISOR In 1970, Jack McGowan left a promising career on the floor of the New York Stock Exchange, came West and never looked back. A chance encounter that year with the singer Paul Simon on a New York City street corner cemented his desire to become an Oregonian after Paul described his travels here. Since that time, Jack has become involved in numerous business and community building initiatives, including: serving as press secretary for the Portland Mayor, running his own Issues Management firm, directing marketing for the Oregon Zoo, reporting as an international correspondent for the NBC Affiliate in Portland, and, for 18 years, serving with his wife, Jan, as Co -Executive Directors for Governor Tom McCall's statewide non- profit organization SOLV (Sustaining Oregon's Legacy by Volunteering). Jack and Jan helped expand SOLV to be one of the Northwest's largest volunteer non-profits—registering more than 80,000 annual volunteer engagements in approximately 250 Oregon communities. Jack has been involved in many civic activities, including serving on the organizing committee of "Flight For Freedom —a statewide response to the terrorist attacks against the United States on September 11, 2001. "Flight For Freedom" coordinated the travel of more than 1,000 Oregonians to New York City about three weeks after the attacks—as part of a nationwide show of solidarity and to set an example of citizen spirit and courage in the face of terrorism. Jack and Jan were married in Camp Sherman 30 years ago and have long called Sisters their "kiss the ground" home. Jack has been accorded the Oregon Statesman Award, the Portland First Citizen Award and the Governor's Tourism Award and has received an Honorary Doctorate from Pacific University for his work on building community and civility across Oregon. Among numerous other volunteer activities, he currently is chair the Sisters Folk Festival, serves on the board of Oregon Public Broadcasting and chairs OPB's statewide Community Advisory Board. "This initiative of Citizens4Community rings true to my heart. In today's fractious world, where a lack of respect, tolerance and civility is all too accepted as the norm, C4C and the Sisters Country Civility Project offers a quiet but important alternative that can help create a healthier and better future for the community. WENDY BIRNBAUM • ADVISOR/VOLUNTEER Wendy practiced law for 25 years in Southern California. She was a family law attorney and mediator for 15 years. She has a strong belief in the strength of positive communication to address and resolve issues. While in California, she served on nonprofit boards for homes for abused children, Orange County Bar Association and committees for food banks, education and mentoring. She closed her law practice in 2005 to travel and explore the world. She and her husband lived in Peru for 8 months in 2007. For six months they lived in a small Peruvian city in the Andes where she volunteered to work with indigenous children as part of an after school and Saturday program. Through her absorption of the culture, people, language and rhythm of life, she gained a wealth of appreciation for life's values and meaning and the art of communication beyond language. Wendy and her husband Bill moved to Sisters in 2008. She was the Coordinator for the Hispanic Coalition English classes for Hispanic adults in Sisters and childcare for 3 1/2 years. The English classes offered an opportunity for adults to learn English and for the Anglo tutors and Hispanic students to build relationships and a sense of mutual community which transcend to today. She served on the Community Schools Committee as a representative for the Hispanic Coalition to assure that the Hispanic students and families received all services available to them. She is currently a mentor for the ASPIRE program for high school juniors and seniors to help them focus on their plans after high school. "I am passionate about the opportunities for the residents of Sisters to embrace and adopt C4C's Civility Project to engage in respectful communication about the issues that face this rich and wonderful community, and to reach consensus that will enhance living here." JAN MCGOWAN • ADVISOR Since forming Jan McGowan Nonprofit Consulting in 2008, Jan has worked with more than 60 organizations, helping them focus, strategize and plan for success. Her work supports strategic, fund development and business planning. Jan also facilitates board and staff retreats and supports organizations with special projects—such as organizational assessments, hiring, policy development and executive coaching. For the past six years, Jan also has been an advisor and trainer for the Nonprofit Learning Center at Walla Walla Community College, where she has presented on planning and board development topics. She also is a past presenter at the High Desert Nonprofit Conference. Jan's experience with nonprofits comes from serving in several positions at SOLV, including Associate Director, from 1991-2007. She helped grow and manage SOLV from an all - volunteer effort with annual budget of $10,000 into a $2 million per year organization employing 30 -plus employees and engaging some 75,000 volunteers statewide. Prior to her experience at SOLV, Jan worked from 1985-1990 as coordinator of the Mayor's Office of International Relations in Portland, where she served as staff to eight Sister City nonprofit associations. Jan is a Senior Fellow and past board member of the American Leadership Forum of Oregon, where she chaired the Fund Development Committee for six years. She also is a past board member of the Sisters Outdoor Quilt Show, and past president of the board for Circle of Friends in Sisters, where she continues as a current board member. Additionally, Jan served on Sisters' 2013 Local Option leadership team. "I developed the following statement far my business: 'Effective nonprofit organizations channel the passion of individuals who dream and imagine a better world. They play a critical role in meeting the needs of communities, society and the environment'And Citizens4Community is the perfect example of this concept in action. Indeed, through C4C's Sisters Country Civility Project and Speak Your Peace, we dream—[ dream—of a better world: one that is more understanding, inclusive and kind." 2 H N -1� ° ml �� �c o r F` o ° °'U 2 ZY d O; c rn' 31 c!'9 ;co cI J. ��. LL', y N li N �[ O O O'O Of m 7' C a N MNN wE9 r CO �I, ; E9 : E9 E9 E9 EA EA O� ,LL c. t N C O O O O O :O O O O O O. 0 0 0 0 0 0 0 0 0 O O O O O O: 0 0 0 0 0 0 0 O 0 0 0 0 0 O 0 0 0 0 Ln O O O M O: O O O r O n P 0 0 0 C. 0 0 0 '0 O O 'O O O O: O O (O. O N 0) (O EAO M O OEA (OOf9 O. 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Q _ to 000 N C 0O N ci CJCfccr N M �6 d 0 E ;w OC 0 0 0 0 0 0 0 0 0 0 0 0 O 0 O 1.0 rH O00 n to O m w to O t vi N 00 rq w, w tri _ m m a� = o cy 0 u o = ns u o m U Q tw S 00 N C 0 N CJ N C1 M CJ !0 'oO Cl F— 0 OC Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 28, 2018 DATE: February 21, 2018 FROM: Erik Kropp, Administrative Services, 541-388-6584 TITLE OF AGENDA ITEM: Discussion and Consideration of Draft Policy on Records Retention RECOMMENDATION & ACTION REQUESTED: Attached is a draft policy on Records Retention. An audit titled "Selected Electronic Communications (email and texts) - Retention, Access and Storage" included a recommendation to adopt a County policy on records retention. A work group including John Laherty (Legal), County Clerk Nancy Blankenship, Erik Kropp (County Administration) and Joe Sadony (IT) developed a draft Records Retention policy for consideration. ATTENDANCE: Erik Kropp, Nancy Blankenship, John Laherty, and Joe Sadony SUMMARY: Board discussion and consideration for approval of Records Retention Policy. �Lycr `'p Deschutes County Administrative Policy No. XXXXXX Effective Date: **DRAFT** Records Retention and Destruction STATEMENT OF POLICY It is the policy of Deschutes County to manage records from creation to final disposition in accordance with State of Oregon public records laws. APPLICABILITY This policy applies to all County departments/offices and the 9-1-1 Deschutes County Service District. DEFINITIONS "Archive" means to retain permanently with either the County Clerk's Office or within a department. "Destroy" means to delete (electronic records), recycle (paper records that do not contain confidential, sensitive, or protected information), or shred (paper records with confidential, sensitive, or protected information). "Public Records" include any written communication relating to the conduct of the County's business that are prepared, owned, used or retained by Deschutes County regardless of physical form or characteristics (ORS 192.005[5]). "Retain" means to keep for a period of time but not permanently. POLICY AND PROCEDURES All Deschutes County employees will retain, archive, and destroy public records in accordance with the Secretary of State's "County and Special District Retention Schedule" (OAR 166-150). In general, records listed in the "County and Special District Retention Schedule" are common to most counties and districts and are necessary to satisfy the fiscal, legal, administrative or historical policies, requirements or needs of the County. The department/office that creates the record (or receives the record from an outside entity) is responsible for proper retention of the record. However, this does not mean that the responsible department needs to maintain duplicates of records that are kept centrally (for example, payment vouchers entered into the Munis software program). I. Records That Are Not a Public Record ORS 192.005(5) defines what is not a public record. Those applicable to the County are: Policy # XXXXX — Records Retention and Destruction Page 1 • Extra copies of a document, preserved only for convenience or reference. • A stock of publications. • Messages on voice mail or other telephone message storage and retrieval systems. • Spoken communication that is not recorded. Additionally, although not specifically mentioned in ORS 192.005(5), more examples of records that are not a public record include the following: • Listsery messages, advertisement, junk mail/spam • General mailings such as blood drive announcements, timesheets are due, etc. • Reference material (articles, magazines, books, etc.) that were not produced by the County and are not unique or specific to the County department. Records that are not classified as a public record do not need to be retained. II. Public Records and Criteria for Retention/Archive A public record includes any written communication containing information relating to the conduct of the County's business, regardless of physical form or characteristics (email, hand written, computer generated). Attachment A lists common public records. A public record falls under the record retention law if the record meets all three (I - 3) of the following criteria: 1. Is prepared, owned, used or retained by a County employee (including elected officials); and 2. Relates to an activity, transaction or function of a County department; and 3. Is necessary to satisfy the fiscal, legal, administrative or historical policies, requirements or needs of the County. Generally, records fitting these criteria are listed in the Secretary of State's "County and Special District Retention Schedule" (OAR. 16(i-150). A public record must be retained for the time specified by the Secretary of State's "County and Special District Retention Schedule." A record with a permanent retention requirement must be archived as a paper document or in microfilm. III.Public Records that Do Not Need to be Retained In addition, although still considered a public record, there is generally no retention requirement for the following records (please note: an employee may choose to retain for business purposes): • Drafts • Databases, spreadsheets, and other structured data held in a computer that changes frequently. Policy # XXXXX — Records Retention and Destruction Page 2 • Emails - unless the content meets the requirements contained in Section II, items I — 3, of this policy. For example, if an email constituted a contract between the County and a vendor, it would require retention. If the email included an attached PDF of a final signed contract, the contract would need to be retained, not the email message transmitting the contract. • Texts — unless the content meets the requirements contained in Section II of this policy, items I - 3. • Social media postings and correspondences - unless the content meets the requirements contained in Section II, items 1 — 3, of this policy. • Instant messages (such as a message using "Jabber" or other instant message system). IV. Options for Retaining Records There are three options for retaining electronic records: 1. E -filing system 2. Print and file 3. Hybrid There are three options for retaining paper records: 1. File 2. Scan and save electronically 3. Hybrid Each department head shall decide the best method to retain its records that fall under the Secretary of State's "County and Special District Retention Schedule." Best practice is for departments to use a functional filing system for electronic and paper records that categorizes the types of record and/or organizes by broad functional areas, and groups records by retention requirements. Folders, electronic or paper, are not recommended to be used as "keep forever" piles. It is also not recommended to use paper or electronic personal folders (such as the "h" drive, "c" drive, or a file cabinet located in an employee's office/cubicle) to store records requiring retention. The County Clerk's Office and Information Technology Department are available for consultation by departments. Policy 4 XXXXX — Records Retention and Destruction Page 3 V. Suspension of Destruction of Records Upon receipt of a Litigation Hold memorandum or other notice from the County Legal Department, destruction of all specified records shall be immediately suspended in accordance with the terms of the notice. Approved by the Deschutes County Board of Commissioners. Tom Anderson County Administrator Policy # XXXXX — Records Retention and Destruction Page 4 Attachment A — Common Public Records for Deschutes County • Contracts • Leases • Emails related to County business. • Intergovernmental Agreements (IGAs) • Purchasing records • Payroll records • Personnel records • Customer survey responses • Press releases • Departmental reports • Minutes from a staff meeting • Staff reports that go to the Board of Commissioners • Policy and procedures • Employee instruction manuals • Work orders Policy 4 XXXXX — Records Retention and Destruction Page 5 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of February 28, 2018 DATE: February 21, 2018 FROM: Erik Kropp, Administrative Services, 541-388-6584 TITLE OF AGENDA ITEM: Discussion of Moving County's Personnel Rules Out of County Code RECOMMENDATION & ACTION REQUESTED: Direct staff to move forward with removing the Personnel Rules from County Code ATTENDANCE: Erik Kropp, Deputy County Administrator SUMMARY: Chapter 3 of Deschutes County Code contains the Personnel Rules. The Personnel Rules cover the following topics: Title 3. DESCHUTES COUNTY PERSONNEL RULES Chapter 3.04. INTRODUCTION TO PERSONNEL RULES Chapter 3.08. DEFINITIONS Chapter 3.09 CRIMINAL CONVICTIONS RECORD CHECKS Chapter 3.12. APPLICATION OF PERSONNEL RULES TO COUNTY EMPLOYEES Chapter 3.16. RECRUITMENT AND APPOINTMENT OF EMPLOYEES Chapter 3.20. HOURS OF WORK Chapter 3.24. WAGE AND SALARY ADMINISTRATION Chapter 3.28. PERSONAL CONDUCT Chapter 3.32. PROMOTIONS, DEMOTIONS AND REASSIGNMENTS Chapter 3.36. LEAVE Chapter 3.40. DISCIPLINE AND DISCHARGE Chapter 3.44. GRIEVANCES Chapter 3.48. TERMINATION OF EMPLOYMENT To make a change in the Personnel Rules, the Board must hold a public hearing and the effective date for any changes (unless approved by the emergency clause) is 90 -days after adoption. Staff would like to discuss moving the Personnel Rules out of the County Code. The Personnel Rules would become a stand alone document and changes would be made by Board resolution. Attached is Chapter 3.04 of the Personnel Rules: Introduction to Personnel Rules. Title 3. DESCHUTES COUNTY PERSONNEL RULES Chapter 3.04. INTRODUCTION TO PERSONNEL RULES Chapter 3.08. DEFINITIONS Chapter 3.12. APPLICATION OF PERSONNEL RULES TO COUNTY EMPLOYEES Chapter 3.1.6. RECRUITMENT AND APPOINTMENT OF EMPLOYEES Chapter 3.20. HOURS OF WORK Chapter 3.24. WAGE AND SALARY ADMINISTRATION Chapter 3.28. PERSONAL CONDUCT Chapter 3.32. PROMOTIONS, DEMOTIONS AND REASSIGNMENTS Chapter 3.36. LEAVE Chapter 3.40. DISCIPLINE AND DISCHARGE Chapter 3.44. GRIEVANCES Chapter 3.48. TERMINATION OF EMPLOYMENT Page 1 (Rev. 12/2009) Chapter 3.04. INTRODUCTION TO PERSONNEL RULES 3.04.010. Purpose. 3.04.020. Employee Acknowledgment. 3.04.030. Personnel Rules Not a Contract. 3.04.040. Adoption., Amendment, Administration. 3.04.050. Equal Employment Opportunity. 3.04.010, Purpose. The Deschutes County Personnel Rules ("Personnel Rules") are intended to establish personnel procedures and to provide guidelines for the standards of performance, employee responsibilities, behavior and conduct that are expected of all Deschutes County employees. The Personnel Rules serve as a guideline for personnel administration in the following areas: A. Recruiting, selecting, and advancing employees on the basis of ability, experience, knowledge, and skills. B. Providing equitable and adequate compensation. C. Training employees, as needed, to help achieve high performance and operating efficiency. D. Retaining employees on the basis of perfornnanee, including regular evaluations of employee performance and corrective or disciplinary actions if necessary or appropriate. E. Assuring, in accordance with applicable laws, the fair treatment of all applicants and employees in recruitment, selection, promotion, training, discipline, discharge and all other aspects of personnel administration without regard to race, color, national origin, sex, religion, age, marital status, family relationship, sexual orientation, physical or mental disability (provided reasonable accommodation can be made for any such disability), political affiliation, or any other classification protected by Oregon or federal law, and with proper regard for the privacy and constitutional rights of applicants and employees. F. Assuring that employees are protected against political coercion, are prohibited from using their official position for the purpose of interfering with or affecting the result of an election or a nomination for office and, in accordance with Oregon public employee ethics laws, with the exception of official compensation, are prohibited from using their official position for the personal benefit or gain of the employee and/or the employee's relatives. (Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 198 1) 3.04.020. Employee Acknowledgment. Each County employee shall acknowledge, by signature on a form approved by the Personnel Department, that the employee has received, read and understands the Personnel. Rules. (Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 198 1) 3.04.030. Personnel Rules Not a Contract. The Personnel Rules are not a contract, either express or implied. Employment with Deschutes County is at - will which means that either Deschutes County or the employee can terminate the employment relationship at any time for any reason. Deschutes County reserves the right, at any time, unilaterally and without notice, to revise, add to, delete, supplement, or rescind all or any part of the Personnel Rules and any and all policies adopted by the County, including any practices or procedures followed or permitted and any benefits provided, which are not otherwise required by taw or which are the mandatory subjects of bargaining under an existing collective bargaining agreement or tinder provisions of State law. Employees will be notified in writing of any changes to the Personnel Rules or to adopted written County policies. (Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-01.1, §l, 1986; Ord. 81-053, §1, 1981) Page 2 (Rev. 12/2009) 3.04.040. Adoption, Amendment, Administration. A. Adoption. Personnel Rules are adopted by County ordinance. The Personnel Rules become effective in the same manner as any other County ordinance and will be made available in the Personnel Department and in all departments. If the County maintains an Internet or Intranet site or sites, the Personnel Rules shall be available for viewing on the County Internet site and the County Intranet site. B. Amendment. A request for a change in the Personnel Rules may be submitted to the County Administrator in writing at any time by the Board, any department head or any employee. All amendments or changes to the Personnel Rules must be approved by the Board and shall be adopted by County ordinance. C. Administration of Rules: The County Administrator, through his or her administrative departments and offices, shall be responsible for the administration and management of the County, including the administration of the Personnel Rules and the County personnel system. The County Administrator shall make recommendations to revise these rules, administer the classification and compensation plan and implement such policies and procedures as may be necessary to implement and administer the Personnel Rules. (Ord. 2009-027, § 1, 2009; Ord. 2007-01.7, §2, 2007; Ord. 86-011, § 1, 1986; Ord. 81-053, § 1, 198 1) 3.04.050. Equal Employment Opportunity, Deschutes County is an equal opportunity employer and does not discriminate against any employee or applicant for employment with respect to any aspect of recruitment, selection, employment, advancement, discipline or discharge on the basis of race; color; national origin; sex; religion; marital status; family relationship; sexual orientation; gender identity; age; physical or mental disability (provided reasonable accommodation can be made for any such disability); political affiliation; being a victim of domestic violence, sexual assault, or stalking; service in a uniformed service; association with a protected class; or any other classification protected by Oregon or federal law. (Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 198 1) Page 3 (Rev. 12/2009) February 28, 2018 Oregon Congressmen and Senators, Deschutes County Board of County Commissioners P. O. Box 6005, Bend, OR 97708-6005 1300 NW Wall St., Suite 206, Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 www.deschutes.org boardkdeschutes.org Tammy Baney Anthony DeBone Phil Henderson As you know, the 2017 wildfire season impacted forests across the West, leaving many communities with questions about how to more effectively mitigate wildfire risk and behavior. Locally, we're no stranger to these issues. Over the past thirty years, Deschutes County has emerged as a national leader in implementation of a cohesive wildfire strategy that involves public education, community outreach, landscape restoration and robust emergency response. Working together, we're prioritizing the work that needs to be done and collaborating to try and increase the pace and scale of forest restoration in our community. We need your help at the federal level to continue to prioritize forest management issues. We can all agree that the Deschutes National Forest is important wildlife habitat, an economic engine for our region, a source of clean and abundant water, and a world-class recreational playground. We have a high level of agreement locally about what needs to be done to restore our forests and keep them healthy. Consistency in federal policy to provide a means for treatment programs rather than suppression will enable us to continue to have success at the local level. We appreciate your support and would love to hear from you if there are things we can provide to help you be more successful in moving these issues forward. Sincerely, The Deschutes County Board of County Commissioners Anthony DeBone, Chair Philip G. Henderson, Vice -Chair Tammy Baney, Commissioner February 28, 2018 ` Deschutes County Board of County Commissioners Oregon Congressional Representatives, P. O. Box 6005, Bend, OR 97708-6005 1300 NW Wall St., Suite 206, Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 www.deschutes.ore board@deschutes.org Tammy Baney Anthony DeBone Phil Henderson As you know, the 2017 wildfire season impacted forests across the West, leaving many communities with questions about how to more effectively mitigate wildfire risk. Locally, we're no stranger to these issues. Over the past thirty years, Deschutes County has emerged as a national leader in implementation of a cohesive wildfire strategy that involves public education, community outreach, landscape restoration and robust emergency response. Working together, we're prioritizing the work that needs to be done and collaborating to try and increase the pace and scale of forest restoration in our community. We need your help at the federal level to continue to prioritize forest management issues. The Deschutes National Forest is important wildlife habitat, an economic engine for our region, a source of clean and abundant water and a world-class recreational playground. We have a high level of agreement locally about what needs to be done to restore our forests and keep them healthy. Consistency in federal policy to provide a means for treatment programs rather than suppression will enable us to continue to do this important work. As Deschutes County Commissioners, we respectfully request that all of our representatives work together to prioritize forest management policies that protect our communities. Sincerely, The Deschutes County Board of County Commissioners Anthony DeBone, Chair Philip G. Henderson, Vice -Chair Tammy Baney, Commissioner